SIERRA CLUB v. S.C. (COUNTY OF ORANGE)Petitioner’s Opening Brief on the MeritsCal.November 15, 2011 No. $194708 IN THE SUPREME COURT C [>\ OF THE STATE OF CALIFORNIA ee ' SIERRA CLUB, Petitioner vs. _ SUPERIOR COURT OF THE STATE OF CALIFORNIA, |co COUNTY OF ORANGE, vet Respondent. COUNTY OF ORANGE, Real Party in Interest. aa AFTER A DECISION BY THE CALIFORNIA COURT OF APPEAL, FOURTH APPELLATEDISTRICT, DIVISION 3, NO. G044138 ORANGE COUNTY SUPERIOR COURT Honorable James J. Di Cesare No. 30-2009-00121878-CU-WM-CJC PETITIONER’S OPENING BRIEF ON THE MERITS Sabrina D. Venskus, SBN 219153 Venskus@lawsv.com Dean Wallraff, SBN 275908 DWallraff@lawsv.com Venskus & Associates, P.C. 21 South California Street, Suite 204 Ventura, California 93001 Telephone:(805) 641-0247 Facsimile: (213) 482-4246 Attorneys for Petitioner, THE SIERRA CLUB No. 5194708 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA SIERRA CLUB, Petitioner VS. SUPERIOR COURTOF THE STATE OF CALIFORNIA, COUNTY OF ORANGE, Respondent. COUNTY OF ORANGE, Real Party in Interest. AFTER A DECISION BY THE CALIFORNIA COURTOF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION 3, NO. G044138 ORANGE COUNTY SUPERIOR COURT Honorable James J. Di Cesare No. 30-2009-00121878-CU-WM-CJC PETITIONER’S OPENING BRIEF ON THE MERITS Sabrina D. Venskus, SBN 219153 Venskus@lawsv.com Dean Wallraff, SBN 275908 DWallraff@lawsv.com Venskus & Associates, P.C. 21 South California Street, Suite 204 Ventura, California 93001 Telephone: (805) 641-0247 Facsimile: (213) 482-4246 Attorneys for Petitioner, THE SIERRA CLUB TABLE OF CONTENTS ISSUES PRESENTED 1.0... cececeescceeeeseeeeseneeseeneseneeneeenensentneenseeereesesseeseneeeaasengess 1 STANDARDOF REVIEW........ces:ccccesseeseseeeneeeseeeceneeeneeeseneresteaseesaeenanenegens 2 PROCEEDINGS BELOW .......esscsesscsesceeeseesnesneennecenaeesestaeaenrsnseeesgessaeaeneegens 2 INTRODUCTIONju. ..cccccccesseeceeeseceessseceneeeneeesnesseeseeserseetessaeeessesesenseanaseaeensners 3 STATEMENTOF THE FACTS AND OF THE CASE...eeceeceteeteestes 8 ARGUMENT...eeeccecseessccsseceesceeescnceerssneseeraneeeeeenaeecseesesenecneeesnressaesesenseaaseneeens 11 1. SECTION 6254.9 EXCLUDES COMPUTER SOFTWARE FROM PUBLIC RECORD STATUS, BUT DOES NOT EXCLUDE COMPUTER DATA, SUCH AS THE GIS FILE-FORMATTED OC LANDBASE.......cccceeessceereereeteeteetteeseesereseceeens il A. The PRA‘s Broad Disclosure Policy Favors Disclosure of the OC Landbase.«0... eescesssesseeeneeseneesessereeeteenesserseeserseanesesseneeseee 11 B. “Computer Software” Is Clear And Unambiguous And Therefore The Court Should Give Effect To Its Usual And Customary Meaming......cscccccccrcseteeerieereseenenneneneesscnecerereneneney 13 C. If Ambiguity Can Be Found In Section 6254.9, It Must Be Resolved In Favor Of Disclosure of Data Such as the OC LaTndbase. ....cccccssssssesecccccensecsecerecscsescccceeeeccsncnscueeeereceessnpansseeeeseeseesenteeeees 17 1. Aclear, direct, and reasonable reading of section 6254.9 indicates that the Legislature did not intend the term “computer mapping system”to include data..............- 1 S O a. Section 6254.9 distinguishes between data and software, protecting only the latter from disclosure........-.--00+ 19 b. The Legislature intended the terms “computer mapping systems,” “computer programs,” and “computer graphics systems”to have a parallel Meaning......+..-eeere21 c. The Rule Against Surplusage Is Not Applicable.............-++. 25 2. The Fourth District’s reading of section 6254.9 cannot be reconciled with section 6253.9, but the two sections must be read in harmonybecause they are both part of the Public Records Act...etree28 If. SECTION6254.9’s LEGISLATIVE HISTORY CONFIRMS THAT THE MEANING OF “COMPUTER SOFTWARE”IS INTENTIONALLY LIMITED.........ee32 A. The Legislative History Contradicts the Opinion’s Conclusion that the Legislature Intended “computer mapping systems” To Mean Both GIS Software and Gi5S- formatted Data. ......eceseeceseccesseecceseneserseeneeneeceesaeeeencesonsastenrnerneseneraeseeess 41 B. Post-1988 Legislative Activity Contradicts The Fourth District’s Assertion of Legislative Intent Regarding The Meaning of “Computer Mapping Systems.”.........1:seeereetee48 C. The Opinion Defeats The PRA’s Goal of Maximizing Access To GovernmentInformation So That Citizens Can Monitor Government AndParticipate In The Democratic PLOCESS. ....cececcseesseceessseceseeeecneeseserecsconsesesesennaseeseessneaeeneceeespeeteniesteegeserees 51 I. THIS COURT SHOULD ADOPT THE INTERPRETATION OF “SOFTWARE” ADOPTED BY THE SIXTH DISTRICT COURT OF APPEAL AND THE CALIFORNIA ATTORNEY GENERAL.......ceeeeeseeeeeteeeteetereeere ok IV. THE CALIFORNIA CONSTITUTION REQUIRES THAT SECTION 6254.95 COMPUTER-SOFTWARE EXCLUSION BE LIMITED TO SOFTWAREONLY...ees59 CONCLUSION....cccceeceeseceseeeeeseeesseseenscusenerseseeneseseneecneneneesnessespeeseneesiaeenees 64 il TABLE OF AUTHORITIES CALIFORNIA CONSTITUTION Cal. Const., art. I, § 3, Subd. (D) oo.eecteeeteteenereeteesernereee eens 18, 59, 64 Cal. Const., art. 1, § 3, subd. (b) par. (1)....eeeeceeseesereteeeereteeeeneneneteeenees 64 Cal. Const., art. 1, § 3, subd. (b) par. (2)... cseeceeereeeeeeeerenetees 1, 62, 63, 64 Cal. Const., art. I, § 3, subd. (b) par. (5)...ceceeeeeeeteeese ee eseseeerrereeeneessenen 64 CALIFORNIA CASES Berry v. American Express Publishing, Inc. (2007) 147 CalApp.4th 224.0...ceseeeeenesrereesreeerereneneenneneestae 38, 39, 43 California Assn. ofPsychology Providers v. Rank (1990) 51 Cal.3d Lenescesseesseeeeeseeneseeneerarensenscereersseseseessesecensensens43, 50 CBS v. Block (1986) 42 Cal.3d 646... .cccceeerecenececereeresceseesseesserseneseeneneetsenssesisaracers 13 CBS Broadcasting Inc. v. Superior Court (2001) 91 CalApp4th 892.0... ccccceecenecsereneereneseerceseeneeeeesensnerieanereneeten 2 Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal4th 278.o.ccecesssecsseseeecreeeeeeeesnenenenetseeneeeseeeneneneseiseseneteatace: 42 Cory v. Board ofAdministration (1997) 57 CalApp.4th 1411...cccsenses reeseeneeneenseneenenten 15, 24, 28 County of Santa Clara v. Superior Court of Santa Clara County (2009) 170 Cal.App.4th 1301... eeeeeeeenee sees ceesereeseeeneseeeeeecceteneesieey 7,353 Iv Dix v. Superior Court (1991) 53 Cal.3d 442.eessssessssseeseesesenecsseseseeseesseseerieenenerieeeenaenee 27 Fitch v. Select Products Co. (2005) 36 Cal.4th 812 oo.eccessseessceseneneneneenseseeensnetsnereseerenneneessenaenete: 14 Flanagan v. Flanagan (2002) 27 Cal.4th 766 22... ee escscsseseeesesteeeeeeneeeneecsenensieeeteeecienseesseneeene: 27 Garcia v. McCutchen (1997) 16 Cal.4th 469 oeseseescecesseereseccenseeeeseeseseseteeesceeeseneneeees 30 Gikas v. Zolin (1993) 6 CalAth 841 oeceeeeccsecsseeseeneensneeseesenessenesecesnesenereesecenseeateney 37 Goodman v. Lozano (2010) 47 Cal4th 1327icieccecsssesseeerereesesseesesceeesseeneeseneserseeeeseeenetey 16 Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 CalApp4th 26... ccceeescssseeseteereeeseceeeersereeereneeenenrestieeten43 Laurel Heights Improvement Assn.v. Regents of University of California (1988) 47 Cal. 3d 376... ececessessececceeseesenecseneeeeneceeneessesseseneneeaenetereaeeaey 66 Lorig v. Medical Bd. (2000) 78 Cal.App.4th 462.0... ccccccseceenecsseeneeneseeteereneesenenenenrerrenecienenes il Lungren v. Deukmejian (1988) 45 Cal.3d 727 ..eesececessesseseseceecseseetecneneetensenenenesseeeeacenesess 14, 17, 20 McCarther v. Pacific Telesis Group (2010) 48 Cal4th 104 oeeeeseeseseseseceeneerecnentessesessenseensesneneaseneanensneeeeacacens 38 Moorev. California State Bd. ofAccountancy (1992) 2 CalAth 999 ooccccecsesseeeseneeneseseneeeeteeecserecsenesenenseneeesesenty21, 22 Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222... eeeecsceseeseesseceaseeeaeeeneeneecseeeesesretsererentseessenenaaness 26 Ohio Farmers Ins. Co. v. Quin (1988) 198 Cal.App.3d 1338.....cccsceececeeteresseeteeceseseseeneneennnenenentenratanans 51 Olson v. Automobile Club of Southern California (2008) 42 CalAth 1142 oo. eessessseseseseteseeeeererecseererscseeeneeensenesseenneneasasen49 Ornelas v. Randolph (1993) 4 CalAth 1095 ....ceeecesesseseseseseseecereeeneneccnteresecessesstsseneenensreseeneaten: 27 Pacific Legal Foundation v. UnemploymentIns. Appeals Bd. (1981) 29 Cal.3d 101... ececseeesseseeesenenecseeseereceesseensesteaesrsrersnssnsseseesengees 27 Palos Verdes Faculty Ass’n. v. Palos Verdes Peninsula Unified School District (1978) 21 Cal.3d 650... eeeeseseeseeeseeeeeceneneeseseeeeenetatssererscesersees Al People v. Boyd (1979) 24 Cal.3d 285. ececsecssssesssscceessesseresseesesseseeereentneeetnescenseesseseree es LL People v. Cruz (1996) 13 Cal.4th 764 oo. ceeeecseece ces eneneneeeseneeseeeesereneenereereseereeseess 11 vi People v. Garcia (1999) 21 Cal4th 1 oeeee cess cseenscesseseessneesseseseseessenenssnesseseseeseees 6, 30 People v. King (2006) 38 Cal.4th 617 0... cececcseeenesssesseeseeneneeseneneneecesineeeeeeeneernerererenen 14 People v. Patterson (1999) 72 Cal.App4th 438... ccceseccecseresereereeeeeenenetetteieeieteeeeess40, 42 People v. Roberge (2003) 29 CalAth 979 oo. eeeeeeesseseseeeseeseseneeseeeeeesensneneeneeeseateetesenteeeetetenen7 People v. Shirakow (1980) 26 Cal.3d 301oesecs ceeseseeseesseneneeeeneeseseeseseenenensesseessiseeesees 6, 28 People v. Ventura Refining Co., (1928) 204 Cal. 286 oo. cecssceeseeescescessseessenessensnsessessseeseseceesaenseeceesesereces 27 People v. Woodhead (1987) 43 Cal. 3d 1002...ieee eseceesssesecsereeseessesseneseeceeetenseneceeeeeraenerieeey 18 Quintano v. Mercury Casualty Co. (1995) 11 Cal4th 1049 occcscs sseneneeseesssecsenessesssseeesseneessescieeeeeres42 Reid v. Google, Inc., (2010) 50 Cal.4th 512 oosceecccesscssseesssseesscsssuecccesseeseessnecesssssnecesneeeeeruues 16 Rhiner v. Workers’ Comp. Appeals Bd. (1993) 4 Cal.4th 1213ieeecccceseeseneseeneneeeeesesseseeseceeeneeeaceeenenesereerenes 14 Rich v. State Board of Optometry (1965) 235 CalApp.2d 591... ccceseseseeseeeeecieeeesnenereeirinesetieneeteneesy 38, 56 vii Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal4th 220 oececesesssseeresrecseeeeseeneeseseeeneeneeaeneeens27, 56, 57 Shoemaker v. Myers (1990) 52 Cal.Bd Leneecesecessesscssssesecescseneenscneneesceeeseneenereceecneeresinteseraeees 26 Sonoma County Employees’ Retirement Assn. v. Superior Court (2011) 198 CalApp.4th 986.......ccccscceceeeeeeeeeieereeeeneee renee tieseerenenees 63 Strauss v. Horton (2009) 46 CalAth 364 oo.ececscceeecseeneerecneeneneeneeneenesteenerrseneetiesieenenenen 62 Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.Ath 995 oeecccessesceesceenenessenereceeterseeeeneeeeieeeeeneeetteeterecnes 45 Ventura v. City of San Jose (1984) 151 CalApp.3d 1076.0... cccceneceeeecereeereeeereneneneeseenteeeeerneciens30 Walnut Creek Manorv. Fair Employment & Housing Com. (1991) 54 Cal.3d 245occasecesescesseneneeeeneeereceeeeeseeeesaetaseetereeenes li, i4 Wasatch Property Management v. Degrate (2005) 35 Cal4th L111 oiecee ceccesereceeneneenseneeeeeeeeesserenesneseeeereerees 16 Wilkoff v. Superior Court (1985) 38 Cal.3d 345oestseeeessesseeseseceescssssenseneeseeeseseecseneensenresseneeaee 50 Williams v. Superior Court (1993) 5 Cal4th 337 .o.ceeesccecesceeceeeeeesseseeserceenseneessetectectenecienessersecenneets 12 Vili FEDERAL CASES Arizona State Bd. for Charter Schools v. U.S. Dept. of Education (2006) 464 F.3d 1003 0...eee ceeeeee cee cereeeeeeseeeee sees seveeeseetesneseecsseseeeeneenas 26 CALIFORNIA STATUTES Government Code § 6250 oo... eeeeeesnecnneeeeseneessesenseesersenesnnaeeeate 11, 36, 62 Government Code § 6252() uw... ceeeereeeeeeeestreeseterseeneasenseseceesesseesasesenaes 36 Government Code § 6252(€)oesceeseessesenecsseesereseeceneeersseerssennes 12, 36, 54 Government Code § 6253(D)......eeeceseneeseceeereetseeecerseeteeeneeseeeeerneeresereeneas 48 Government Code § 6253.1(a)(2).... eee eeeeseeseeseeeeeeesneeeesssaneeeesssessesneernes 54 Government Code § 6253.9 ooo.seeeeeeneceeeesaceeerscerensssecersnensesersnrecees passim Government Code § 6253.9(a) ....eeeeeeccceeceseereeeeenceeeseeseesacterseeseestenenereeees28 Government Code § 6253.9(a)(1)......eecceeeeseeccseeeceeeeeeeecneseeesseneeceeeseneenes 29 Government Code § 6253.9(a)(2).....eeccesecesseeereseeeeesecseeseeeereraeeseeteesseaeetsas 29 Government Code § 6254.9oo.cceceseec secs sneereneeseeeteneeteceeneeees passim Government Code § 6254.9(a) ...eececccesteeesseerseceeeseeseeeneteneeeeenereees passim Government Code § 6254.9(D) oo... .ceescesscesseeeneesseerereeseeesseneneneeeeseees passira Government Code § 6254.9(C)...ccccscccccecsseeeseceeeeeeereneeneeecnerasecennessteesnesneeens 35 Government Code § 6254.9(d)....eeeeecee sere eeneeteesrserenenens 16, 23, 25, 27 Government Code § 6254.9(€) ooo. eeeseeeecceeeeeceeeeteneenne teres pe seetenereeeeeees 57 Government Code § 6256 00... eeceecescceeneeeeeeseeeeeeeteeeeeneensennees36, 46, 47, 45 Government Code § 6257 o.....ieeeeccceeeseeceeeccreeenee esses eenseneeeseeneeeceneeeeeni 33 ix Government Code § 6258 «0... eesssscseseceseeessenseceeeeeeeeeneenenttessssenenessneerenens 66 Government Code § 6259... ceeessceececssssessesteeeeeneseesseneentenereeserasstees 3, 66 Government Code § 6259(d).....sscecesseseseseseecretersersetstecessrenenessneeeseeaserens 66 Government Code § 31532... ececesccseesenestesseesereeetesseetecseeesserecsecassereeneens 63 OTHER AUTHORITIES 88 Ops.Cal.Atty.Gen. 153 (2005) w.eeeescscesceeesesesessecsseseeeeeaseneeneeseeenseserrereenees 7,15, 16, 17, 49, 55, 57, 58 9 Witkin, Cal. Procedure (5th ed. 2008), § 511...eeeeeeterna 56 Ballot Pamp., California Primary Elec. (Nov. 2004) Argument In Favor Of Prop. 590... ssscccssesseseeeseeceseeeseeerenseserseneenenenesseeererencarsneneesy 61 Black's Law Dictionary (8th ed. 2004) 0...seeneeersesereneeneteereenenetenetens 27 Ceruzzi, A History ofModern Computing (1998). ...-..sscreeeesenettien23 ISSUES PRESENTED As stated in the Petition for Review,the Issues Presented are as follows: 1. Geographic Information Systems(GIS) data is computer data consisting primarily of information referenced to specific geographic locations, such as the legal boundariesof the land parcels in a county. Does the Public Records Act’s computer-software exclusion in section 6254.9 exempt non-software computer data, such as GIS data, from mandatory disclosure? 2. Does the constitutional requirementthat a “statute ... shall be broadly construed if it furthers the people’s right of access, and narrowly construedifit limits the right of access” (Cal. Const., Art. 1 §3, subd. (b), par. (2)) require that section 6254.9’s' computer- software exclusion be limited to software only, since it limits the rights of access? The Issue for Review as articulated in the Answerof Real Party in Interest County of Orange to Petition for Review(the “Answer”) 1 Section references are to the Government Code, unless otherwise specified. is: “whether the California Public Records Act (“CPRA”) requires a government agency to producethe database associated with a GIS in a GISfile format pursuant to Government Codesection 6254.9 at the cost of duplication.” STANDARDOF REVIEW Since the aboveare issues of statutory interpretation, the standard of review is de novo. (CBS Broadcasting Inc. v. Supertor Court (2001) 91 Cal.App.4th 892, 906 [“[T]he interpretation of the PRA and its application to undisputed facts, present questions of law subject to de novo appellate review.”].) PROCEEDINGS BELOW This petition arises from an action in the Superior Courtof California, County of Orange, Sierra Club v. County of Orange, filed April 21, 2009, Case No. 0-2009-00121878-CU-WM-CJC, heard in Dept. C-18 of the Santa Ana courthouse by the Honorable James J. Di Cesare. Sierra Club wasthe petitioner in the action. Real Party in Interest, County of Orange, was respondentin the action. On Augus: 3, 2010 the trial court denied the Sierra Club’s petition for a writ of mandate. (5-PA-1347-62, [Stmt. of Dec.,].) The Sierra Club timely filed its appeal to the Court of Appeal, Fourth District on August 27, 2010. The appeal took the form of a Petition for Extraordinary Writ (“Writ Pet.”), as required by section 6259, subd.(c). A total of six Amici Curiae briefs were filed: five in support of Sierra Club and one in support of Orange County. After full briefing on the merits, on May 31, 2011, the Court of Appeal denied Sierra Club’s Petition and issued a 21- page published Opinion. On July 12, 2011, Sierra Clubfiled a Petition for Reviewin this Court, which was granted on September14, 2011. INTRODUCTION This case involves the question of whether government agencies may use § 6254.9 of the California Public Records Act (“PRA”) to convert an electronic public record into a revenue- generating device. Morespecifically, the issue is whether or not the Legislature intended to make GIS-file formatted land parcel data, held by the government in computerfiles, subject to the PRA so that government agencies are required to disclose their land parcel data in an electronic file format requested by a memberof the public, without requiring a fee and licensing agreement. Orange Countyhas oneofthe largest stakes in the answerto this question,asit has long charged amongthe highestfees in the state for such information. Here, Sierra Club requested, pursuant to the PRA,the entire collection of Orange County’s land parcel data in GISfile format (referred to as the “OC Landbase”) so that it can view and analyze the data using Sierra Club’s own GIS software (not Orange County’s). But according to Orange County, GIS formatted data is not subject to the PRA at all. Citing Government Codesection 6254.9 (sometimesreferred to herein as the “Software Provision”) asits basis, Orange County contendsit may refuse Sierra Club’s PRA request because the requested data is “software” excluded from disclosure under the PRA. £ tian L9GA Os i LOT OLO2.7 (a) Computer software developed bya state or local agency is notitself a public record underthis chapter. The agency maysell, lease, or license the softwarefor commercial or noncommercial use. (b) As usedin this section, "computer software” includes computer mapping systems, computer programs, and computer graphics systems. (c) This section shall not be construed to create an implied warranty on the part of the State of California or any local agency for errors, omissions, or other defects in any computer software as provided pursuantto this section. (d) Nothing in this section is intendedto affect the public record status of information merely becauseit is stored in a computer. Public records stored in a computer shall be disclosed as required by this chapter. (e) Nothing in this section is intended to limit any copyright protections. Both parties agree the Software Provision expressly excludes computer software, as that term is commonly and ordinarily understood, from PRA disclosure requirements. Where the parties diverge is whether the Software Provision should be construed as also excluding from the PRA’‘s reach a specific type of computer data, specifically GIS-file formatted data like the OC Landbase. Onthis issue, the Court of Appeal (hereinafter referred to as “Fourth District”) agrees with Orange Countythat GIS datais “software” as contemplated by the Software Provision and thusis not a “public record” and therefore need not be disclosed pursuantto the PRA’s terms. The Fourth District concludes that GIS data is “part ot” a “computer mapping system,” as used in subd., (b), and thereforets, by extension, “computer software” in subd., (a), thus broadly construing “software” to mean both computer mapping “software,” as well as any computer mapping “data” processed by the software. (Sierra Club v. Superior Court of Orange County (2011) previously published at 195 Cal_App.4th 1537 [125 Cal.Rptr.3d 913]; Slip Opinion, (“Opn.”) attached to this brief as Exhibit A.) o l Respectfully, the Fourth District, indenying Sierra Club’s Petition, makes several errorsin its analysis. The Opinion turns away from the plain meaning of the term “software.” In doing so, the Court gives a generous reading toa subset of software, “computer mapping systems,” which the Court took to mean both “software” and “data.” One unfortunate result o! this reading of the statute is that it creates disharmony between section 6254.9 and anothersection of the PRA, section 6253.9. (People v. Shirakow, (1980) 26 Cal.3d 301, 307; People v. Garcia, (1999) 21 Cal. 4th 1,6.) Further, instead of narrowly interpreting the Software Provision as the PRA andthe California Constitution require, the Fourth Circuit does precisely the opposite, reading the public access- limiting statute expansively, thereby sweeping computer data into its exclusionary grasp. Instead of resolving any perceived ambiguityin the statute in favor of public’s right to access government information, the Opinion accords excessive deference to the City of San Jose’s subjective goals for the legislation, the sponsor of the bill that led to section 6254.9. At the sametime, the Opinion discounts the bill’s languageas it evolved throughlegislative amendments,a review of which supports a finding that the Legislature in tact intended what subdivision (d) of section 6254.9 makes perfectly clear- that computer software developed bya state or local agency would be exempted from the PRA, but that data related to the conduct of the public’s business would remain a public record subject to disclosure in accordance with the PRA’s terms. Finally, the Fourth District’s interpretation of the Software Provision conflicts with two published authorities supporting Sierra Club’s position—a decision by the Sixth District Court of Appeal in 2009 and a 2005 Attorney General opinion, both of which support the contention that GIS data is subject to mandatory disclosure underthe PR A (Count af Santa Claran Sumertar Caurt af Ganta Clara Caimty é Hiiet) OF OUNiM Wii &, OUPEPUP SNUEE UP Ober bie Nite bie SURE SEE (2009) 170 Cal.App.4th 1301, 1334); &8 Ops. Cal. Atty. Gen. 153, [“AG Opinion”].) The Fourth District’s Opinion,if left undisturbed, would allow state and local agencies to deny accessto a large, and increasingly important, class of government held information. Neither the Legislature in enacting the PRA, nor the People of California in amending the California Constitution to elevate access to government information to civil right status, intended such a result. STATEMENTOF THE FACTS ANDOF THE CASE GIS is an acronym for “geographic information systems.” GIS has been described as providing “a frameworkfor gathering and organizing spatial data and related informationso that it can be displayed and analyzed.” (5-PA-1307, [ESRI A to Z GIS, An Illustrated Dictionary of Geographic Information Systems(2006), p. 90].) GIS software processes GIS data so that the data can be viewed, manipulated and analyzed. (3-PA-527:23-31, [Declaration of Bruce Joffe, (“Joffe Decl.”)]; 3-PA-537:8-11 [Declaration of Amanda Recinos, ("Recinos Decl.")].) Orange County currently distributes the OC Landbase in a GiS file format to membersof the public, if they pay a licensing fee and agree to the license’s restrictions on disclosure and distribution. (Opn. p. 4.) The OC Landbasein GISfile format does not consisto:, or contain computer software as defined by the American Heritage Dictionary. (5-PA-1083, [Stipulated Fact No. 20, (“The OC Landbase in the format the Sierra Club has requested, and in whichitis currently distributed to OC Landbaselicensees does not contain programs, routines and symbolic languages that control the functioning of computer hardware and direct its operation.” )femphasis added]; 5-PA- 1315, [American Heritage Dict. (4th ed. 2004), p. 1652.] .) The Sierra Club made several PRA requests for a copy of the OC Landbase. (1-PA-16-17; 36-37; 52; 69-70; 5-PA-1086; 1106; 1116; 1121, [Exhibits to Stipulated Facts].)? Orange County denied the requests, citing, among other sections, the PRA’s Software Provision. section 6254.9, (1-PA-46-47; 54-55; 72-73), offering instead to produce the paper records from which the OC Landbaseis compiled, or PDF electronic copies. (Opn. p. 4.) Neither the paper records nor the pdf files can be displayed or analyzed by the Sierra Club’s GIS software. (Ibid.) The OC Landbaseis used every day by Orange County officials to make importantpolicy decisions. (GIS Needs Assessment Study, attached to Petitioner’s Request for Judicial Notice (“Pet.RJN”) as Exhibit 2, at OC-1215.) A “GIS Needs AssessmentStudy,” recently conducted by an external consulting firm at the behest of Orange County, concluded that the OC Landbaseis “the most essential data set in the county.” (Id. at OC 1455.) It contains the reference data consulted whenever an OC Public Works employee needs to know the boundaries, location, ownership or other characteristics of a parcel of land in the county.(Id. at OC-1463.) The GIS Needs * As noted in the Opinion, the parties stipulated to most of the relevant adjudicative facts. (Opn., p. 3.) Assessment recommendedrolling out the OC Landbaseto be accessed “countywide.” (Ibid.) Because of the OC Landbase’s wide applicability and extensive use, it is one of the most important public records maintained by Orange County. Despite the importance of the OC Landbase to government activity, Orange County restricts access to it unless membersofthe public are willing to pay hefty fees. For example, data for each parcel in GIS formatsells for one dollar, although Orange County provides a discount to purchasers of more than 100,000 parcels. (2-PA-400, [Fee schedule for “Parcel Map Data” indicating 600,000 parcels for a be passed onto others. (2-PA-394-99). In contrast, the vast majority of California counties provide their GIS parcel data to the public free of charge or for a small fee covering the cost of copying the GIS data toa CD or DVD,with no non-disclosure agreement required. (3-PA-533-34, [Joffe Decl. {II 35- 37].) Even the largest county in the state, Los Angeles County, providesall of its parcel data in GISfile format to the public for a copying fee of only $6.00. (1-PA-110). 10 ARGUMENT I. SECTION 6254.9 EXCLUDES COMPUTER SOFTWARE FROM PUBLIC RECORD STATUS, BUT DOES NOT EXCLUDE COMPUTER DATA, SUCH AS THEGIS FILE-FORMATTED OC LANDBASE. A. The PRA’s Broad Disclosure Policy Favors Disclosure of the OC Landbase. The fundamental goal of statutory interpretation is to ascertain legislative intent so that the purpose of the law may be effectuated. (People v. Cruz (1996) 13 Cal.4th 764, 774-775; Walnut Creek Manorv. Fair Employment & Housing Com. (1991) 54 Cal.3d 245, 268; Palos Verdes Faculty Ass'n. v. Palos Verdes Peninsula Unified School District (1978) 21 Cal.3d 650, 658). Any interpretation of section 6254.9 must be viewed through the lens of the Legislature’s declared intent in enacting the PRA: “{Alccess to information concerning the conduct of the people’s business is a fundamental and necessary right of every personin this state,” (Section 6250). Courts have explained the importof this legislative declaration, “[b]y its own terms, the CPRA embodies a strong policy in favor of disclosure of public records,” (Lorig v. Medical Bd. (2000) 78 Cal.App.4th 462, 467), and therefore “all public records are subject to disclosure unless the Legislature has expressly provided to the contrary.” (Williams v. Superior Court (1993), 5 Cal.4th 337, 346.) The Legislature intended to bring almost all governmentheld information into the purview of the PRA as evidenced bythe expansive definition of “public records,” which means“any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by anystate or local agency.” (§ 6252, subd.(e).)? As this Court has observed, "This definition is intended to cover every conceivable kind of record that is involved in the governmental process and will pertain to any new farmof record-keaenine instrumentas Ht is develoned." (Commission oO AMLERE UE SEAN P e Ch Meee pee Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th - 278, 288, fn. 3, internal quotations omitted.) Thus, any governmentrecord, regardless of the mannerin which the record has been stored, is a public record. Even 3 This is not to say that almost all government held informationis required to be disclosed; indeed many categories of governmentheld information are exempted from disclosure, but nonetheless maintain their “public records” status under the PRA. 12 information contained in a computer database qualifies as a writing under the PRA, and thusis a public record.(Id.) The Legislature’s adoption of such an expansive definition of “public record” has an important purpose: “Implicit in the democratic processis the notion that government should be accountable for its actions. In order to verify accountability, individuals must have access to governmentfiles.” (CBS v. Block (1986) 42 Cal.3d 646, 651.) Thus broad disclosure of government information promotes participation in the democratic process and encourages citizens to make governmentaccountable. Therefore, the policy underlying the PRA favors a broad interpretation of the type of information that is subject to disclosure, and the default position is that nearly any information held by the governmentis a “public record” subject to disclosure. This policy favors disclosure of the OC Landbase. B. “Computer Software” Is Clear And Unambiguous And Therefore The Court Should Give Effect To Its Usual And Customary Meaning Courts are bound to give effect to statutes according to the “usual, ordinary import” of the language employed in framing them. (Walnut Creek Manorv. Fair Employment & Housing Com. (1991) 54 Cal.3d 245, 268.) “[W]hen...the language of a statute is clear and 13 unambiguous, its meaning should generally be followed.”(Rhiner ¢. Workers’ Comp. Appeals Bd. (1993) 4 Cal. 4th 1213, 1226.) "Words usec in a statute... should be given the meaning they bear in ordinaryuse [citations].” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, emphasis added.) Moreover, “’[i]f the plain, commonsense meaning of a statutes words is unambiguous,the plain meaning controls."(People v. King (2006) 38 Cal.4th 617, 622, quoting Fitch v. Select Products Co. (2005) 30 Cal.4th 812, 818, emphasis added.) Section 6254.9, subdivision (a) states: “Computer software developedbya state or local agency is notitself a public record underthis chapter. The agency maysell, lease, or license the softwar for commercial or noncommercial use.” The operative term in section 6254.9 is computer “software.” (§ 6254.9, subd. (a).) This is a term that is clear and generally understood by the publicatlarge. (See Lungren, supra, 45 Cal.3d at p. 735.) Thus, the term “computer software” has a plain, commonsense meaning. (See King, supra, 35 Cal.4th at p. 622.) Most people have used computer software in their lives and equate computer “software” with computer “programs,” such as Microsoft Word or iTunes. 14 To further illustrate the point, mainstream dictionary definitions define computer “software” and computer “programs” similarly.4 (See, e.g., Cory v. Board ofAdministration (1997) 57 Cal.App.4th 1411, 1419-20 [using dictionary definition to determine plain meaning].) For example, the American Heritage Dictionary defines computer “software” as “the programs, routines, and symbolic languages that control the functioning of the hardware anc direct its operation,” and computer “programs”as “a set of coded instructions that enables a machine, especially a computer, to perform a desired sequenceof operations.” (5-PA-1315 and Exhibit 5 to Pet.RJN, respectively, [American Heritage Dict. (4th ed. 2006)].) Neither of these definitions so much as mentionelectronically formatted data, and for good reason, since data upon which software operates cannot simultaneously be softwaretoo. (See 88 Ops. Cal. Att'y Gen. 153, 159 [describing software and data].) 4 The Opinion suggests that Sierra Club “rellies] heavily” upon dictionary definitions, (Opn., p.7), but then uses a dictionary definition of “system”for the proposition that the term “computer mapping system” should include more than a computer program component. (Ibid., p.8.) Thus, the plain meaningof the subject term “software” in subdivision (a) is commonly understood to be distinct from the data upon which the software operates. (Reid v. Google, Inc., (2010) 50 Cal.4t 512, 527.) Subdivision, (d), whichstates, “nothing in this section”is intended to “affect the public record status of information merely becauseit is stored in a computer,” recognizes this distinction. Plainly read, then, section 6254.9 unambiguouslyexcepts computer software from public record status, but not computer data This Court’s decisions have held that dictionary definitions play an integralpart in ascertaining the meaning of statutory 1 fo. nn deneer Lavan fintion Av Cal At language. (See Goodman v. Lozano (2010) 47 Cal.4th1 Q J97 1333-1334 ho Lf bey bY ayLa ] citing Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111,Q o 1121-1122 [“When attempting to ascertain the ordinary, usual meaning of a word, courts appropriately refer to the dictionary definition of that word.”].) The Fourth District gives short shrift to the plain meaning of “software,” (Op., at pp. 8-13), and instead resortsto legislative history to investigate the meaning of the term “computer mapping systems” contained in subd., (b). (Opn., p. 8 [“Weturn first to section 6254.9’s legislative history” ]; Opn., p. 17 [“We have construed section 6254.9 as narrowly asis possible consistent with its legislative 16 history”]; Opn., p. 17 [distinguishing Attorney General Opinion for failing to examinelegislative history.]) Its primary reliance on legislative history is misplaced because whenstatutory language is clear and unambiguous, resort to legislative history is neither appropriate norjustified. (People v. Boyd (1979) 24 Cal.3d 285, 295 [holding that even thoughtheparties’ differing interpretations of the legislative history were equally rationalto give rise to conflicting inferences regarding statutory construction, departing from the plain language wasnotjustified becauseofit].) Ultimately, the language of the Software Provision speaks for Ttent& The torm aitcn!l Th e tearara’”’ tarm of “ardinaryuse ALOWLhe BALW tL 7S . iL a WA. queen at its regular, ordinary meaning should be employed in construing the statute. (Lungren, supra, 45 Cal.3d at p. 735.) Thus, because the ordinary meaningof “software” does not mean computer-formatted data, the meaning of the Software Provision is unambiguous(See 55 Ops.Cal.Atty.Gen. 153, 159 (2005)), and should be held as such. C. If Ambiguity Can Be FoundIn Section 6254.9, It Must Be Resolved In Favor Of Disclosure of Data Such as the OC Landbase. Assuming, arguendo that the Software Provision is ambiguous, it is appropriate to “look to “extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory schemeof which the statute is a part.’ [citations]. (People v. Woodhead (1987) 43 Cal. 3d 1002, 1008.) Employingthese interpretive tools of construction leads inescapably to the conclusion that the Software Provision does not include data such as the OC Landbase. First, as discussed further belowin section IV of this brief, Article I, Section 3 (b) of the California Constitution requires a strict canon of narrowconstruction be applied to public records disclosure limitations. As such, the Software Provision mustbe read narrowly in favor of disclosing computer data, should any perceived ambiguity need resolving. Second, to read the Software Provision otherwise results in an unreasonable reading of subdivision (b), which contains three terms. wee“computer mapping systems,” “computer programs,” and “computer graphics systems,”counterto the full text of 6254.9. Third, construing the Software Provision as excluding certain types of computer data, such as GIS formatted data, results in disharmony within the statutory scheme. Fourth, a reviewof the legislative history demonstrates that the Legislature’s intent in enacting the Software Provision wasto protect software from the PRA‘s reach, net databases or data. Finally, public policy considerations are 18 instructive in PRA matters involving technological advances in record keeping and information gathering, such as here, so that the most judicious approach tostatutory interpretation of the Software Provision is that advocated by Petitioner. 1. A clear, direct, and reasonable reading of section 6254.9 indicates that the Legislature did not intend the term “computer mapping system”to include data. a. Section 6254.9 distinguishes between data and software, protecting only the latterfrom disclosure. Orange County’s position, approved by the Fourth District, can be characterized as follows: because the OC Landbaseis part of a computer mapping system, and that the term “computer software” as used in that section “includes computer mapping systems,” its GIS-formatted land parcel records are excluded from the PRA and can thus be licensed to the public for a fee. (Opn., pp. 13-14.) To reach this conclusion, one muststrain to 3 This formulation of the issue appears to be premised upon misconception of the natureof the data at issue in this case and the software that operates upon it. GIS software processes GIS data so that the data can be viewed, manipulated, and analyzed, (3-PA- 527:23-31, [Declaration of BruceJoffe, (“Joffe Decl.”)]; 3-PA-537:8-11 [Declaration of Amanda Recinos, "Recinos Deci."}.) implying that GIS data is “associated with” the system in which it wascreated, suggesting somesort of co-dependency between the mapping 19 define the term "computer mapping systems’ as something other than software systems — it is not explicitly defined in the Software Provision or anywhereelse in the PRA. But one need not go to such great lengths to make sense of the word “computer mapping systems,” because the Software Provision itself recognizes a distinction between software and data stored in a computer. (§ 6254.9, subd., (d).) Thus, the logical interpretation of “computer mapping systems,”is that it refers to a special type of software, anc not the computer data upon which the software system operates. This is also the only interpretation that avoids conflict with the Software Provision’s express guarantee that "Public records stored in a computer shall be disclosed as required by this chapter."(Ib1d.; see, e.g., Lungren, supra, 45 Cal.3d at 735, ["The meaning of a statute mav not be determined from a single wordor sentence; the words must be construed in context, and provisions relating to the same subject software and the data upon which the mapping software operates, such that it would notbe possible to view, analyze or manipulate the data without the specific software that createdit in the first place. Sierra Club does not need Orange County’s GIS software to view, analyze and manipulate GIS data; it already possesses its own GIS software. Further, just as a document would not be considered part of the word processing program that created it, neither is GIS data part of the software that is used to displayit. 20 matter must be harmonized to the extent possible’].) b. The Legislature intended the terms “computer mapping systems,” “computer programs,” and “computer graphics systems” to have a parallel meaning. Section 6254.9(b) states: “As used in this section, ‘computer software’ includes computer mapping systems, computer programs, and computer graphics systems.” (§ 6254.9, subd. (b), emphasis added.) These three terms should be construed uniformlyand in parallel because “when a statute containsa list or catalogue of items, a court should determine the meaning of each by referenceto the others, giving preference to an interpretation that uniformlytreats items similar in nature and scope.[Citations.] In accordance with this principle of construction, a court will adopt a restrictive meaning of a listed item if acceptance of a more expansive meaning would make other items in the list unnecessary or redundant, or would otherwise makethe item markedly dissimilar to the other items in the list. [Citations.]” (Moore v. California State Bd. ofAccountancy (1992) 2 Cal.4th 999, 1011-1012.) The expansive interpretation of “computer mapping systems” utilized by the Fourth District, makes the term “markedlydissimilar ’ to another listed item, “computer programs,” since “computer rograms” cannot possibly be interpreted as meaning anvthing more oS J o - oS 21 than computer software in its ordinary and customary usage. (Moore. supra, 2 Cal.4th at p. 1012; § 6254.9, subd.(b).) The treatment of each item as “similar in nature and scope” acknowledges the necessarily similar term “system” as used in “mapping systems” and “graphics systems” equating “system” with computer “programs.” (See Moore, supra, 2 Cal.4th at p. 1012.) Such a congruent reading of the listed items however, cannot be achieved if subdivision (b) is interpreted as the Opinion has clone: if “computer mapping systems”is interpreted to mean both the mapping data and the software that processesit, (see Opn., p. 14), then it must also be true that “computer graphics systems” means both graphic data and the graphics software that preservesit.° But, construing “computer graphics systems” to include the data operated uponby the “system” would arguably exclude from the PRAall computer data operated upon by programsusing a graphical interface such as those found on Microsoft Windowsor Apple ° The Fourth District declined to investigate or consider the meaning of the term “computer graphics systems.” (Opn., p.13, fn10.) 22 Macintosh computers,’ in other words, the vast majorityof government-held information stored in a computer. Thus,if the Fourth District’s premise is to be accepted, that the word “system” must mean something more than just a program computer component(Opn., p.8), the premise would violate the express admonition of the Section 6254.9, subdivision (d) that “nothing in this section is intended to affect the public record status of information 7 Whensection 6254.9 was enacted in 1988, most desktop,({ i.e., personal) computers used text-based displays rather than graphical! displays that are common now.(See Ceruzzi, A History ofModern Computing (1998) pp. 272-76, attached to Pet. RJN as Exhibit 6, RJN-2- 4 [“no PC [in 1984, when the Apple Macintosh was introduced]... could offer the graphical interface of the Macintosh.” (pp. 274-75); Microsoft WindowsVersion 3, the first popular version of the Windowssystem “wasas not introduced until around 1990,so for the [seven years between 1984 and 1990], IBM PCs and their clones would be known bythe primitive MS-DOS[text-based, non- graphical] interface inherited from the minicomputer world.” (p. 276).| Thus, in 1988, most computers used text-based interfaces instead of the graphical interfaces we’re accustomed to today. “Computer graphics systems” in 1988 were therefore specialized systems running on the Macintoshes and the small minority of other computers that had graphical display hardware. Today, virtually al! personal computers run MS Windowsor the Macintosh operating system. They, and the software programs running on them are “computer graphics systems.” 23 merely becauseit is stored in a computer.” The Fourth District's reading is therefore unreasonable because it would lead to an unreasonable result. (Cory, supra, 57 Cal.App.4th 1411, 1423-1424 [avoiding unreasonable reading of statutory language].) The Fourth District justifies its interpretation andits failure to employ the plain meaning of Section 6254.9, subdivision (b)in its analysis bystating the following: Section 6254.9’s languageis susceptible to both parties’ interpretations, i.e.,a “computer mapping system” might or might not include data along with the associated computer program. We must focus on the ambiguous phrase “computer mapping system,” not the standard dictionary meaning of “computer software,” because section 6254.9 contains its own definition of computer software. “When a legislature defines the languageit uses, its definition is binding upon the court even thoughthe definition does not coincide with the ordinary meaning of the words... .” (Cory v. Board of Administration (1997) 57 Cal.App.4th 1411, 1423-1424.) (Opn., at p. 8.) The trouble with the Fourth District's analysis is that § 6254.9, subdivision (b) is not the sort of “definition” to which the Cory case and others like it applies. In Cory the term “legislator” was defined in the statute in a provision that started with: “’Legislator’ means ...” (Cory, supra, 57 Cal.App.4th at 1420, emphasis added.) Thus, the 24 Legislature actually set out to proposea definition of the term, whereashere, the Legislature used the term “includes” to denote a list of illustrative examples. In addition, the Cory Court went on to saythat: “If, however, the definitions are arbitrary, result in unreasonable classifications or are uncertain, then the court is not boundby the definition” and can reject the statutory definition in favor of the common and ordinary meaning. (Id. at p. 1424.) The Court found that the application of the statutory definition of “legislator” (provided in a different section) would lead to an unreasonable reading of the statute and rejected it in favor of a meaning that comported with legislative intent and the context of the statute. (Id. at pp. 1424-1425.) Thus, even if the list in subdivision (5) could be considered a “definition,” in the Cory sense, to interpretit expansively to include data would run counter to the legislative intent to disclose information or data as public record. (See Section <, infra; § 6254.9, subd.(d); § 6253.9.) c. The Rule Against Surplusage Is Not Applicable. The Fourth District fails to give “computer mapping system” a parallel meaning to “computer programs” and “computer graphics systems” claiming that to do so would somehow violate the rule against “surplusage.” (Opn., at p. 14.) The Opinion contends that “u 25 ‘computer mapping systems’ denotes only mapping computer programs, then the phraseis superfluous since section 6254.9’s definition of computer software already includes computer programs.” (Ibid., citing Shoemaker v. Myers (1990) 52 Cal.3d 1, 22, Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 234.) But the Fourth District’s construction does not resolve the purported surplusage because one could just as easily argue that “computer mapping systems” are also “computer graphics systems” a term thatis also used in § 6254.9 (b). Thus, even if the term “computer mapping systems”in § 6254.9 (b) was construed to include the data such mapping systems operate upon, the term would remain surplusage. Petitioner’s reading of § 6254.9 (b), that the terms are meant to be overlapping, does not result in the conundrum identified above with respect to the Opinion’s rationale. In sum, the rule against surplusage would not apply to an “includes” clause such as that in subdivision (b) of 6254.9, where the Legislature intends to provide illustrative examples, the meanings of which may overlap. “In both legal and commonusage, the word ‘including’ is ordinarily defined as a term ofillustration, signifying that what follows is an example of the preceding principle.” (Arizona State Bd. for Charter Schools v. U.S. Dept. of Education (9th Cir. 2006) 464 F.3d 1003, 1007; Flanaganv. 26 Flanagan (2002) 27 Cal. 4th 766, 774. ["includes"is “ordinarily a term of enlargementrather than limitation”]; Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1101 [citations] [same]; Black's Law Dictionary(8th ed. 2004) p. 777-78 ["[t]he participle including typically indicates a partia: list’”’].) Here, the more reasonable interpretation and one that does not render 6254.9 subd., (d) itself superfluous, is that subd., (b)is comprised ofa list of software examples and so the rule against surplusage is inapplicable. (See Santa Clara County Local Transportitioi Authority v. Guardino, (1995) 11 Cal.4th 220, 234-235 [the rule against surplusage will be applied only if it results in a reasonable reading of the legislation]; Dix v. Superior Court (1991) 53 Cal.3d 442, 459 [the rule applies "[w]here reasonably possible"]; Pacific Legal Foundation v Unemployment Ins. Appeals Bd. (1981) 29 Cal.3d 101, 114 ["When uncertaintyarises in a question of statutoryinterpretation, consideration must be given to the consequences that will flowfrom a particular interpretation. [Citation.] In this regard, it is presumed the Legislature intended reasonable results consistent with its expressed purpose, not absurd consequences."]; (People v. Ventura Refining Co., (1928), 204 Cal. 286, 290 [“Whena statute is fairly susceptible of two constructions, one leading inevitably to mischiet or absurdity and the other consisting of sound sense and wise polics, 27 the former should be rejected and the latter adopted.”]; see also Cory v. Board ofAdministration (1997) 57 Cal.App.4th 1411, 1423-1424; (“"[statutes] must be given a reasonable and commonsense construction”].) 2. The Fourth District’s reading of section 6254.9 cannot be reconciled with section 6253.9, but the two sections must be read in harmonybecause they are both part of the Public Records Act. A statute must be construed "in the context of the entire statutory system of which it is a part, in order to achieve harmony among the parts.” (People v. Shirakow (1980) 26 Cal.3d 301, 307.) convincing evidencethat the Software Provisions in section 6254.9 does not cover data or databases. Section 6253.9 of the PRA provides that when public records are maintained by an agencyin "any electronic format,” the agency "shall make that information availabie in an electronic format when requested by any person.” (§ 6253.9%a).) This section confirms the Legislature’s intent to subject data stored on government computers to public disclosure. When read together. §§ 6254.9(d) and 6253.9 require disclosure of data in the format requested by the Sierra Club. Here, Sierra Club requested the data in 28 GIS format. (5 PA 1083, 15.) Thus, Orange County cannot comply with the PRA by producing non-GIS formatted data. The County contends, and the Fourth District implicitly agrees, that because Orange County provides map data in some format(i.e., 2 non-GIS format such as a pdf format), its PRA obligations have been met. (See Opn,p. 15, fn.12, [“the County offered Sierra Club the information in ‘Adobe PDFelectronic format’’].) This contention contradicts the Legislature's repeal (in 2000 with the adoption of section 6253.9) of the rule allowing records to be provided in any format in which the agencychose. (See Pet.RJN, Exhibit 1,[A.B. 2799, records, section 6253.9 requires the agency to " make the information. available in any electronic format in whichit holds the information." (§ 6253.9(a)(1).) Alternatively, the agency "shall" make the information available "in the format requested if the requested formatis one that has been used by the agency to create copiesforits own use or for provision to other agencies.” (§ 6253.9(a)(2).) The Fourth District avoids addressing the conflict between § 6253.9 andits interpretation of § 6254.9 by relying on the rule of statutory construction that where a conflict arises between two 29 statutes, the more general of the two must give way to the more specific.’ (Opn., p. 15.) But the rule “applies only when the two sections cannot be reconciled.” [Citations.] (Garcia v. McCutchen (1997) 16 Cal.4th 469, 478.) If two statutes can be harmonized “then [a court] must give ‘concurrenteffect’ to both, 'even though oneis specific and the other general.” [Citations.] (Ibid.} Here, §§ 6253.9 and 6254.9 can mostcertainly be harmonizedit we construe computer mapping systemsso that the underlying mapping data upon which the mapping software operates remains @ public record. (See People v. Garcia, (1999) 21 Cal4th 1, 6 [statutes harmonized].) The two sections confli ily when we accept the premise that “computer mapping systems” means software plus data. 5 The Opinion also explains the failure to harmonize section 6253.9 ov implying that because the opposition to the bill requested that software be excluded from 6253.9’s reach, somehow that meantthat 6254.9 should be interpreted broadly to include data. (Opn,p. 15.) However, 6254.9 and 6253.9 read together means that only software was intended to be excluded from public record status. The amendmentto the bill to include the exemption language was not intended to broaden the scope of 6254.9 but rather ensure that anv exemptions such as 6254.9 wouldstill apply. 30 Moreover, the Opinion does not consider the relationship between §§ 6253.9 and 6254.9 until long after it has reachedits conclusions about whatthelegislative history shows, at which time § 6253.9’s electronic format requirement was brushed aside on the groundsthatit “applies to electronically formatted ‘information that constitutes an identifiable public record not exemptfrom disclosure..." (Opn., p.15, italics in original.)? But, ultimately, depending on how one reads § 6254.9, either the GIS data requested bySierra Club is excluded from public recordstatus or it is not. If excluded, none of the information need be providedatall, electronically or otherwise. (§ 6254.9 subds.(a) & (b).) If not excluded, then the GIS data is a public record, and, pursuantto § 6253.9, Orange County’s offer of electronic records in pdf file-format does not suffice. There is no “walking the line” for Orange County. Viewingsection 6254.9 in its statutory context thus furnishes a clear and compelling indication that the Legislature intended the words "computer mapping systems" in section 6254.9(b) to refer 3 Elsewhere, the Opinion describes § 6254.9 as an exclusion, rather than an exemption, “since governmentally-developed ‘computer software’ within the meaning of that statute is not a public record.” (Op., p. 6, fn4.) exclusively to computer mapping software. Indeed, in viewof the language of section 6253.9, no other conclusion is reasonable. I. SECTION 6254.9’s LEGISLATIVE HISTORY CONFIRMS THAT THE MEANING OF “COMPUTER SOFTWARE?”IS INTENTIONALLY LIMITED. Section 6254.9 was originally proposed by the City of San Jose who soughtto recoup costs from its developmentof certain computer-stored information. (AB 3265 as introduced,in Legislative History (Leg. Hist., 4-PA-934-1078); 4-PA-943.) When the City of San Jose introduced AB 3265 on February 11, 1988, it apparently hoped to amend the PRA so that agencies could sell or lease “proprietary information,” which was broadly defined as "computer readable data bases, computer programs, and computer graphics systems. (4-PA- 941-42.) San Jose thus wantedto sell, lease or license the informatior “at a cost greater than the ‘direct costs of duplication.” San Jose’s memorandum containedin the legislative file of the Senate Committee on Governmental Organization explained that it wanted to sell as “proprietary” not just computer programs and computer readable databases but “other computer stored information”thatit had developed. (4-PA-986.) As introduced, AB 3265 proposed adding the following language to § 6257: 32 Nothing in this chapter prohibits an agency from selling proprietary information or requiring a licensing agreement for paymentof royalties to the agency prior to any subsequentsale, distribution, or commercial use of the proprietary information by any personreceiving the information. For purposesof this subdivision, "proprietary information” includes computerreadable data bases, computer programs, and computer graphics systems. Anyfee or royalty imposed for proprietary information shall be based on thecost of developing and maintaining the information andshall take into consideration whether the person requesting the information contributed to the developmentof the information. (4-PA-942 (emphasis added).) After the bill’s introduction, the City of San Jose did not receivea as the bill was amendedeverything it wanted from the Legislature on April 4, 1988, to delete references to "proprietary information”and to replace the conceptof selling or leasing “information” with selling or leasing software: AB 3265, as amended,.... Public records: proprietary information computer software. The existing California Public Records Act requires each state or local agency, upon receiving any requestfor a copy of recordsin its possession which are subject to public disclosure, to make the records promptly available upon paymentof fees covering direct costs of duplication or any applicable statutory fee. 33 This bill would provide that computer software developed or maintained by a state orlocal agency is notttself a public record under the act and would authorize the agencyto sell, lease, or license the softwarefor commercial or noncommercial use. The people of the State of California do enact as follows: SECTION 4 Section 6257 0f the C Cedeis SECTION1.Section 6254.9 is added to the Government Code, to read: 6254.9 (a) Computer software developed or maintained by state or local agencyis not itself a public record underthis chapter. The agency may sell, lease or license the software for commercial or noncommercial use. (b) Nothing in this section is intended fo affect the public record status of information merely becauseit ts stored in a computer. (c) As used in this section, “computer software” includes computer readable data bases, computer programs, and computer graphics systems (4-PA-943-44 (the "April 4 Amendments.").) However, the bill as amended contained contradictory 34 language; although its amendmentdistinguished “software” from proprietary “information,” the term "computer readable data bases,” wasleft in the bill, which would exclude from the PRA notjust software, but also the data upon which software operates or processes. As a result, on April 28, 1988, the California Department of Finance (hereinafter “Finance Department”) submitted a Bill Analysis opposing AB 3265,in part becausethe bill still referred to databases: Theinclusion of data bases in paragraph(c)is contradictory to the intent expressed in paragraph (b) since the records maintained in data bases are subject to public records laws.P re i The definition of computer software in (c) includes data bases. The inclusion of data bases in paragraph (c)is contradictory to the intent expressed in paragraph (b) since data bases are organizedfiles of record information subject to public record laws.In addition, the inclusion of information data bases in the definition of computer software makes them subjectto sale, licensing, or rental whichis contraryto the Section 6250 and 6252(d)(e) of the Government Code. (4-PA-1020-21.) The Finance Department's objections were insightful; due to the internal inconsistency between subsection (b) and (c), but also 35 because computer data was already subject to public record status, as evidenced in then-existing section 6256, which stated “[c]omputer data shall be provided in a form determined by the agency” (former § 6256 [emphasis added].)!° In responseto the Finance Department's objections, the Legislature amendedthebill again on June 9, 1988: SECTION1.Section 6254.9 is added to the Government Code, to read: 6254.9 (a) Computer software developed ormaintained bystate or local agencyis notitself a public record under this chapter. The agency maysell, lease orlicense the software for commercial or noncommercialuse. (eb) As usedin this section, "computer software” includes computerreadabledatabases computer mapping systems, computer programs, and computer graphics systems. 0 Computer data was already deemed a public record at the time § 6254.9 was enacted in 1988 pursuantto § 6256, then in force which provided, “[aJny person mayreceive a copy of any identifiable public record or copy thereof... Computer data shall be provided in a form determined by the agency.” (Emphasis added.) This language was repealed in 2000 whenthelegislature amended the PRA to add § 6253.9, requiring computer data be disclosed in the electronic format requested if held by the agencyin that format. 36 (c) This section shall not be construed to create an implied warranty on the part of the State of California or anylocal agency for errors, omissions, or other defects in any computer software as provided pursuantto this section. (bd) Nothingin this section is intendedto affect the public record status of information merely becauseitis stored in a computer. (e) Nothing in this section is intendedto limit any copyrignt protections. (4-PA-946-47 (the "June 9 Amendments.").) The Legislature’s removal of the final statutory references to computer data demonstrates legislative intent that computer databases are not “software” subject to § 6254.9. (See Gikas v. Zolin (1993) 6 Cal.4th 841861 [“Theeffect on this court of the Legislature's decision to omit the prior language from thefinal version of the bill is plain. We cannotinterpret the section to reinsert what the Legislature has deleted”].) In fact, following the June 9 Amendments, the Finance Department released an amended report interpreting the term “computer mapping systems” as a form of “computer software,” and concluded the changein language from “computer databases” to “computer mapping systems” was intended toeliminate “data” from the software exception. (4-PA-1017.) The report specified the change in the bill meant that “any data that may be stored on a computer stv. 37 retains its public record status.” (See Opn., p. 11; 4-PA-1017 {emphasis added].) The Finance Department’s interpretation was contemporaneous andthusreliable. The deletion of the term “database”as the bill evolved evidences the Legislature’s intention to exclude from thebill all “databases” including GlIS-formatted databaseslike the OC Landbase at issue here (McCartherv. Pacific Telesis Group (2010) 48 Cal.4th 104, 116 [previous failed attempts at passing a bill can be evidence of legislative intent that enacted language does notincludepriorfailed definitions]; see also Rich v. State Board ofOptometry (1965) 235 07 “eT. . aaactine Ly; thvo1 £ r = ALiZi, 0 j ane rejecuoniqnCal.App.2da provision contained in an act as originally introduced is most persuasive to the conclusion that the act should not be construed to include the omitted provision”]; accord Berry v. American Express Publishing, Inc. (2007) 147 Cal.App.4th 224, 231.) By inserting the term “system”in the place of “database,” the Legislature intended to describe something other than a “database,” and the legislative history surrounding the enactmentindicatestha: the term “system” was meantto describe the software and other processes that act on the raw data to display, store, or analvze it. (4- PA-1028.) Instead of reaching this conclusion, the Opinion 38 essentially reads back intothe statute the very term that had specifically been removed bythe Legislature: “database.” (See Berry ». American Express Publishing, Inc., supra, 147 Cal.App.4th 224: 230-31 [“a court should not grant throughlitigation what could not be achieved throughlegislation. Thus, courts must not interpret a statute to include termsthe Legislature deleted from earlier drafts”|.) It might be tempting to interpret, as the Fourth District did, the exchangeof the term “computer mapping system”for “computer readable database” to mean that the Legislature intended to provide a specific exclusion for one specific type of database, a computer mapping database. Hiowevei,since the Legislature chose to remove ali references in the statute to the word “database” specificaliy in responseto the Finance Department's objection that “anydata” should retain its public record status, and add the term computer mapping “systems,” (as opposed to computer mappingdata bases) the only reasonable interpretation of “computer mapping systems”is that it refers not to data, but rather to a system of particular software components. Had the Legislature intended to exclude a particular tvpe of database, it would have simplyidentified the type of “databases” that were to be excluded. It did not. 39 Moreover, an Assembly report!! concurring in the Senate amendmentsto the final bill stated the amendments,“[s]pecifically reference computer mapping systems and makeother technical revisions.” (4-PA-1028; Opn., p. 12.) The report’s “Comments” section notes that San Jose “has developed computer readable mapping systems, graphics systems, and other computer programs for civic planning purposes,” and the “city is concerned about recouping the cost of developing the software.” (4-PA-1028-29, [emphasis added].) Thus, “computer readable mapping systems” and “graphics systems” were both explicitly understood as types of “computer programs,” not databases. Further, the “concern” was to recoup the r yost of developing software, not databases. (4-PA-1029; Opn., p. 9, a y 2.) Finally, that the Legislature intended to protect only computer software while subjecting computer data to disclosure was also made evident in the bill’s final amendmentof June 15, 1988, which further "Assembly reports are more dispositive than a proponent’s “arguments in support in determininglegislative intent.” (People v. Patterson, 72 CalApp.4th 438, 443-44 (1999).) Thus, the Fourth District’s reliance on San Jose’s self-serving arguments is misplacec. as is its failure to provide any analysis of the contradictory language contained in the Assembly report. (Opn., pp. 11-12.) 40 emphasized the public-records status of computer formatted information, as opposed to computer software, by adding to subsection (d) the followingitalicized sentence: “Nothing in this section is intended to affect the public record status of information merely becauseit is stored in a computer. Public records stored in a computer shall be disclosed as required by this chapter.” (4-PA-948-49 {emphasis in original].) The June 15* version ofthe bill passed both houses and wassigned by the Governor.(4-PA-953.) A. The Legislative History Contradicts the Opinion’s Conclusion that the Legislature Intended “computer mapping systems” To Mean Both GIS Software and GIS-formatted Data. As a starting point in its analysis of legislative history, the Fourth District sets out to discover whether the term “computer mapping system”as used in § 6254.9 “includes a computer mapping database,” (Opn., p. 8 [emphasis in original]), and concludingit does, pronouncesthat the Legislature intended to “exclud[e] from public disclosure a narrow and specific type of database(i.e., a computer mapping database).” (Opn., p. 13 [emphasis added].) As outlined above, the Fourth District’s conclusion is contradicted by the legislative history of § 6254.9. Moreover, the Opinionrelies excessively on the opinionsof the original bill’s sponsors while 4] ignoring contrary evidenceoflegislative intent foundin materials reflecting the Legislature’s own opinions and objectives. By relying heavily ontheoriginal intent of thebill’s sponsor, City of San Jose, the Opinionloses sight of the significance of the Legislature’s responsiveness to Departmentof Finance's objections. (Opn., pp. 8-13 [referring to early memorandumsand other materia!s mentioning the word “database”].) Becausethe final bill passed by the Legislature was a far cry from the earlier version advanced by San Jose, the original intent of San Jose becomes muchlessrelevant. (Quintano v. Mercury Casualty Co. (1995) 11 Cal.4th 1049, 1055 [“our 2Btel te pnnetesineg 4 etatite ic ifst taSK M CONnsiruing a statute iimae Legislature so as to effectuate the purpose of the law”}), see also Peoplev. Patterson (1999) 72 Cal.App.4th 438, 443-44 ["When construing a statute, our task is to ascertain the intent of the Legislature as a whole. Generally, the motive or understanding of ar individuallegislator is not properly received as evidence of that collective intent, even if that legislator was the author of the bill in question’].) Moreover, relying on a sponsor’s motivations to countervail the ultimate language enacted reads into the statute something the Legislature did not intend. (Berry v. American Express Publishing, 42 Inc., supra, 147 Cal.App.4th at 231, quoting California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 33 (dis. opn. of Kennard,J.).) The Opinion also seizes upon a San Jose submitted memorandum describing its “Automated Mapping System.” (Opn., pp. 9-10.) However, because there is no evidence this memorandum was even before the Legislature, (4-PA-986), it cannot rightly be regardedas legislative history. (See, e.g., Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 39 ["Because there is no showing that [a document Legisiature as a whole, it does not constitute cognizable legislative history, and the requestfor judicial notice of this documentis denied"].) The sponsor’s wish is not evidence in its own right as to the intent of the Legislature in passing a bill into law. Here, San Jose was not granted every wish, and in any event, as the memorandum pre-dates the bill’s amendments,it is not dispositive or instructive as to the Legislature’s intent. (4-PA-986.) Whenthe Opinion doesrefer to legislative reports, the cited sections are merely further evidence of the sponsor’s original intent in proposingthe bill, as general background. For example, the 43 Opinion quotes a Senate staff analysis as purported evidence of legislative intent to include “databases” within the meaning of software, stating that the “report noted that San Jose ‘has developed various computer readable data bases and other computer stored information for various civic planning purposes’ and that a ‘number of private parties have requested use of the city’s software underthe [Act] for profit-making purposes.” (Opn., p. 11.) However,it fails to consider the context of this statement-- it is contained in the “Background” section and prefaced with the qualification “According to the author....” (4-PA-981.) section titled “Arguments in Support” as follows: “the bill ‘would permitthe city of San Jose and other governmental agencies to recoup developmentcosts of computer databasessold to the public.”” (Opn., p. 11; 4-PA-1013 ) This section supplies backgroundfor the legislators by recounting thebill’s history. The Opinionfailed to mention howeverthat the paragraphis prefaced with "Accordingto the author's office.” (Ibid). Turning to the Finance Department's reports and analyses, the Opinion notes the inclusion of the term “information data bases”in the “Fiscal analysis” section of the June 16, 1988 report which the 44 Departmentleft unchanged from earlier reports, (Opn., p. 11), reads: “The potential revenue generated by the sale of computer programs, graphics, and information data bases could be substantial depending on the price of the information, program or graphics, and conditions of the sales or licensing agreement.” Focus on the Fiscal Analysis section’s language as evidence that the Finance Department understood “computer mapping systems” to mean computer mapping data is misplaced. (5-PA-1357: see Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal4th 995, 1005 [courts mustselect the construction that comports most closely with rn ss dings” section of that same report reflects the Finance Department's position with respect to the amendedbill as “neutral,” because, as amended,it “specifically includes computer mapping systems as computer software” and as such, “specifies that any data that maybe stored on a computerstill retains its public record status.” (4-PA-1077 [emphasis added].) Second, the reports, as discussed above, contain numerous references to “databases,” and do 2 Arguably, because the “Fiscal” section of the report did not provide suggestions for changing the bill, there was no need for the Finance Departmentto revise it from previousdrafts. 45 so in provisions of the reports designed to explain what, precisely, the legislation would accomplish. Significantly, the “Fiscal Analysis” section remainedstatic from one report to anotheras the bill evolved, while the “Specific Findings” of each report did not remain static and specifically dealt with the bill’s impact on the public record status of data. Given the strength of the evidence to the contrary, it was in error for the Opinion to rely so heavily on the ambiguous languagein the Fiscal Analysis section to conclude, that the rest of the report must have been in wrong somehow. Moreover, the Opinion overlooksthe fact that the Legisiature in 1988 was well aware that computer data was, by law, a public record subject to the PRA’s terms. Section 6256, in effect at the time AB 3265 was enacted, authorized agencies to provide information in either paper or electronic form, recognizing that data was public information ("[c]omputer data shall be provided in a form determined by the agency”.) Prior to the enactmentof § 6254.9, computer software developed by public agencies could be requestec as public records by anyone, including commercial businesses wishing to appropriate new software for their own use. The Legislature was awarethat § 6256 did not protect the agencies’ 46 software because the computer program text could be read from paper print-outs of the software program andre-entered, resulting in a functioning piece of software. (See 4-PA-1038, [Letter from County of Santa Cruz, AB 3265 Leg. Hist.].) Moreover, whenit set out to exempt from disclosure computer “software” in any format, the Legislature did not disturb § 6256, thus evidencingits intent that computer “data” as specified in § 6256 remain public records subject to disclosure in a form determined by the agency. That the Legislature was aware of § 6256 import whenit enacted § 6254.9, is evidenced by an Administrative Services 955-56].) A legislator reading these reports would undoubtedly conclude AB 3265 preserved the public information status of all computer data, not just certain types of data, while protecting software and software components from PRA disclosure: Status of Computer Data The bill drawsa distinction between computer software and computer-stored information. Thebill declares that information is not shielded from the California Public records Act “merely becauseit is stored on a computer”. 47 In addition, current law also provides that “computer data shall be provided in a form determined bythe agency” (Government Code § 6256). (Opn., 9 [quoting, 4-PA-0956 [emphasis added].) Whensection 6254.9’s legislative history is viewed as a whole, the Legislature’s intent becomesclear: computer mappingdata, such as the GIS formatted data at issue here, remains a public record subject to the PRA’s terms, and software, including systems of software components, are protected from the PRA’s reach. B. Post-1988 Legislative Activity Contradicts The Fourth District’s Assertion of Legislative Intent Regarding The Meaning of “Computer Mapping Systems.” oO rc EE a af The addition of § 6253.9 to the PRA in 2000, repealing § 6256 demonstrates by implication that § 6254.9’s software exclusion was not understood as applying to a GIS-formatted database. Section 6253.9 effectively stripped agencies of the discretion to disclose public records in the formatof their choosing, thus reaffirming the public record status of all non-software computer data. Further, the Legislature left unchanged § 6254.9 and despite over 100 other amendments to the PRA since the enactment of § 6254.9. (Pet.RJN, Exhibit 7; See Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1155-56, [“because the 48 Legislature had declined to amendthestatute to abrogate our prior decision despite making numerous other amendmentsin the intervening years” the Legislature had acquiescedin ourinitial interpretation].) ; and despite the Attorney General’s 2005 Opinion that “the term ‘computer mapping systems’in § 6254.9 does notrefer to or include basic maps and boundaryinformationperse {i.e., the basic data compiled, updated, and maintained by countyassessors), but rather denotes unique computer programsto process such data using mapping functions — “original programsthat have been designed and produced by a public agency" (88 Ops.Cal.Atty.Gen. 153, 159 (2005) (emphasis in original).) The Legislature has declined to disturb this interpretation. The fact that the Legislature "has never taken stepsto reject [the Attorney General's] opinion” suggestsit concurs with it. (See Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 353 ["Where a statute has been construed by judicial decision, and that construction is not altered by subsequentlegislation, it must be presumed thatthe Legislature is aware of the judicial construction and approvesofit."].) That the Attorney General’s interpretation has been ratified by the Legislature is also evidenced by the fact the 2005 opinion was placed squarely before the Legislature in 2008. AssemblyBill No. 49 1978 (2007-2008 Reg. Sess.), sponsored by Orange County and introduced to define “computer mapping systems” as: “assembled model data, metadata, andlistings of metadata, regardless of medium, and tools by which computer mapping system recordsare created, stored andretrieved,” (Opn., p. 20; Pet-RJN, Exhibit 8), was rejected by the Legislature, never even makingit out of committee. (See Wilkoff v. Superior Court, supra, 38 Cal.3d at 353 [citations omitted]; accord California Assn. of Psychology Providers, supra, 51 Cal.3d at 16-17 [in agreeing with Attorney General's interpretation of statutory term, noting Legislature's failure to “modif[y]" that interpretation]; Ventura v. City of San Jose (1984) 151 Cal.App.3d 1076, 1079-1080 [calling a particular Attorney General opinion "[t]he most persuasive evidence of the Legislature's intent’].) Therefore, the legislative actions and inaction subsequentto the enactment of § 6254.9 provides compelling evidence that the Legislature intendedelectronically formatted data, including GIS data like the OC Landbase, to remain subject to the PRA. 50 C. The Opinion Defeats The PRA’s Goalof Maximizing Access To Government Information So That Citizens Can Monitor Government And Participate In The Democratic Process. The public policy behind the statutory schemeis anothertoo! to help decipherlegislative intent. (Ohio FarmersIns. Co. v. Quin (1988) 198 Cal.App.3d 1338, 1348 [“the favored construction of a statute is one whichis consistent with established public policy”].) As outlined above, the Legislature intended to bring all government held information into the purview of the PRA as evidenced bythe expansive definition of “public records,” in order to promote broad disclosure of government information which in turn promotes participation in the democratic process and encouragescitizens to make government accountable. Compilations of data, such as the OC Landbase, are especially important public records, as evident by the Orange County’s GIS Needs Assessment Study (“Assessment,” a portion of whichis attached as Exhibit 2 to Pet.RJN.) The Assessment claims the OC Landbaseis “the most essential data set in the county.” (Id., at OC 1455.) Its importance is underscored by the fact many County departments makeuse ofit, including the board of supervisors; executive management; OC Parks; Public Works; Engineering and Planning and DevelopmentServices. (Id., at OC 1029.) This data sei 51 is the primary data source used by county officials and employees tc obtain information about land parcels within the county. If itis the “most essential data set” for Orange County government, it is also arguably the “most essential data set” to the public and should therefore be accessible via the PRA.¥ If provided with a copy of the OC Landbasein GISfile format. the Sierra Club, using its own GIS software, could display, analyze and query the data in many ways, some of which would be useful in monitoring the county government's activities. For example, Sierra Club could generate a map showing rangesof assessed value per square foot of land in different colors, to look for patterns ot assessmentfavoring certain types of property owners. (5-PA-001310- 13, [Images of use of GIS parcel data prepared by Amanda Recinos; see also Ms. Recinos’ authentication of said images at RT-000141:13 through 000144:3 ]) Similarly, Sierra Club, using GIS formatted data obtained from the County of Los Angeles pursuant to the PRA,has produced a computer-generated map showingthe parcels of land in Los Angeles County’s Verdugo Mountains. Each parcelis 13 The County’s original land records — records of survey, tract maps lot-line adjustments, deeds, and so forth - amount to approximately seven million pages. (3-PA-538, [Recinos Decl., at 4:9].) 52 color-coded on the map to indicate whetherit is publicly or privately owned. The map hasbeen usedbythe local city councilmemberto prioritize open-space acquisitions in the Verdugo Mountains. (1-PA- 106, 19; 1-PA-107, [¥13, 14, 17, [Declaration of Dean Wallraff]; 1-PA- 113, [example of Verdugo Hills Open Space Map, Exhibit 1, attached to Declaration]). Compiling such a map from the original paper property records would be impractical and wasteful, (3-PA-529:36). for the same reason that compiling an agency department’s income and expense statementfor a given year from the original accounting transaction documents would be impractical and wasteful. GIS lan electronic data sets, enabling sophisticated computerized analysis of an almost limitless numberof matters relating to real property. (3- PA-527:23-26, [Joffe Decl.].) The GIS-formatted OC Landbase enables the entirety of countywide land parcels to be queried, selectively extracted accordingto locational criteria, and displayed ina comprehensive map. (3-PA-527:29-31.) Conversely, when the records are provided only in paper or PDF form, as Orange County has offered, the same analysis is impossible. (3-PA-529:7-15, [Joffe Decl.].) Finally, it makes sense that the Legislature would provide by law that software, as the word is commonly understood, “is not itsel: a public record" because a computer program itself does notdirectly "relat[e] to the conduct of the public's business,” (§ 6252(e)), and therefore is arguably appropriately excluded from the scope of the PRA. In contrast, however, electronic mapping data is critical to the conductof the public's business, and stripping it of its public record status would detrimentally impactcitizens’ ability to monitor and participate in government business. Section 6253.1(a)(2), requires public agenciesto assist citizens with making a focused and effective request for public records by Thus, this section demonstrates the Legislature’s intent that governmentdoall it can to facilitate access to governmentheld information in electronic format. If the Fourth District’s Opinionis allowed to stand, government agencies will be free to deny the public access to computer data held in only some computertechnology formats but not others, frustrating the public policy principles underpinning the PRA as public records becomeincreasingly computerized. Il. THIS COURT SHOULD ADOPT THE INTERPRETATION OF “SOFTWARE” ADOPTEDBY THESIXTH DISTRICT COURT OF APPEAL AND THE CALIFORNIA ATTORNEY GENERAL. Sierra Club’s interpretation of “computer software”in section 6254.9 comports with the 2005 Attorney General opinion (88 Ops.Cal.Atty.Gen. 153 (2005), and the 2009 Sixth District Court of Appealdecision, County of Santa Clara v. Superior Court of Santa Clara County (2009) 170 Cal.App.4th 1301 [“Santa Clara’), both of which in turn follow the correct principles of statutory construction to discern legislative intent. Both opinions concludedthat GIS databases consisting of land parcel data, such as the OC Landbasein the case at bar, are public records subject to mandatory disclosure. The Fourth District Opinion attempts to distinguish them. The facts in Santa Clara are analogousto thefacts in this case. In Santa Clara, petitioner First AmendmentCoalition requested, and was refused, a copy of Santa Clara County’s GIS “basemap,” the equivalent of the Orange County’s GIS “landbase” requested by Petitioner here. First AmendmentCoalition filed suit under the Public Records Act. Thetrial court issued the requested writ of mandate, ordering Santa Clara County to provide the requested GI5 data to petitioner with nolicensing agreement requirement. The Sixth District Court of Appealaffirmed. (Santa Clara, at p. 1337.) O 1 O l The Fourth District in reaching the opposite conclusion, attempts to distinguish Santa Clara on the basis that the Santa Clara Court did not interpret “computer mapping system”as that term is used in section 6254.9 (b). However, this is a distinction without a practical or legal difference because both Courts rely upon the term “computer software” as used in section 6254.9 (a) in some wayor another. (Santa Clara, at p. 1332, fn.9.) The Santa Clara Court determined — albeit in the context of subdivision (e) -- that the GIS database is not exempted from disclosure by virtue of § 6254.9 because GIS data is not “software” as used in subdivision (a) of 6254.9. (Ibid.) Thus, “software” means the same thing in Santa Clara as it does in this case because subdivision (e) of §6254.9 is governea bysubdivision(a) ‘s “computer software” in the same waythat subdivision (b) is governed by subdivision(a). Furthermore, the only other published authority as to the issue of whether “computer software” applies to GIS datais the California Attorney General’s 2005 Opinion. (See 88 Ops.Cal.Atty.Gen. 153 (2005) [“AG Opinion”].) The Attorney General concluded, “Parcel boundary map data!4 maintained by a county assessor in an electronic formatis subject to public inspection and copying under provisionsof the California Public Records Act.” (1 PA-173.) The Attorney General properly determined, using canonsof statutory construction (including plain meaning), that the term “computer mapping systems” in § 6254.9 (b) refers to the software used to process boundary and similar mapping information, not the mapping informationitself: [T]he term “computer mapping systems”in section 6254.9 does notrefer to or include basic maps and boundary information perse(i.e., the basic data complied, updated, and maintained by county assessors), but rather denotes unique computer programsto process such data using mapping functions — original programs that have been designed and produced by a public agency.(See,e.g., §§ 6254.9, subd. (d), 6253.9, subd.(f) [distinguishing “record” from “software in which [record] is maintained” ] 51010.5 subd.(i)[defining “GIS mapping system” as system “that will collect, store, retrieve, analyze, and display “4 “Parcel boundary mapdata,” as the term is used in the Attorney General Opinion, means “detailed geographic informationthatis regularly prepared, maintained, and updated for use by California’s county assessors to describe and define the precise geographic boundaries of ‘assessor’s parcels’ — units of real property for which property taxes are assessed throughoutthestate.” (- PA-173.) 57 environmental geographic data...” (italics added)]. ... ComputerDict. (3d ed. 1997) p. 441 [defining “software” as “[c]omputer programs; instructions that make hardware work”]; Freedman, the Computer Glossary: The Complete Illustrated Dict. (8'" ed. 1998) p. 388 [“A common misconceptionis that softwareis also data.It is not. Softwaretells the hardware howto processthe data. Software is ‘run.’ Data is ‘processed’”]. Accordingly, parcel map data maintainedin an electronic format bya county assessor does not qualify as a “computer mapping system” under the exemption provisions of section 6254.9 (88 Ops.Cal.Atty.Gen. 153, 159 (2005); 1. PA 179). The Fourth District dismisses this opinion in part becauseofits failure to review legislative history. (Opn., p. 17.) However, as addressed above,the use of plain meaning is entirely appropriate and in any event, the legislative history supports the Attorney General’s construction. This Court should adopt the Sixth District’s and Attorney General’s conclusion that a GIS database, such as the OC Landbase at issue in this case, must be disclosed pursuant to the PRA without a licensing agreementor licensing fee. 58 IV. THE CALIFORNIA CONSTITUTION REQUIRES THAT SECTION 6254.95 COMPUTER-SOFTWARE EXCLUSION BE LIMITED TO SOFTWAREONLY. Nowenshrined in the Declaration of Rights, Article 1, section 3(b), provides, (1) The people have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny. (2) A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construedif it furthers the people's right of access, and narrowly construedifit limits the right of access. A statute, court rule, or other authority adoptedafter the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected bythe limitation and the need for protecting that interest. (3) Nothing in this subdivision supersedes or modifies the right of privacy guaranteed by Section 1 or affects the construction of any statute, court rule, or other authority to the extent that it protects that right to privacy, including any statutory procedures governing discovery or disclosure of information concerning the official performance or professional qualifications of a peace officer. 59 (4) Nothingin this subdivision supersedes or modifies any provision of this Constitution, including the guarantees that a person may notbe deprivedoflife, liberty, or property without due processof law,or denied equal protection of the laws, as provided in Section 7. (5) This subdivision does not repeal or nullify, expressly or by implication, any constitutional or statutory exception to the right of access to public records or meetings of public bodies that is in effect on the effective date of this subdivision, including, but not limited to, any statute protecting the confidentiality of law enforcement and prosecution records. (6) Nothing in this subdivision repeals, nullifies, supersedes, or modifies protections for the confidentiality of proceedings and recordsof the Legislature, the Members of the Legislature, andits employees, committees, and caucuses provided by Section 7 of Article IV, state law, or legislative rules adopted in furtherance of those provisions; nor doesit affect the scope of permitted discovery in judicial or administrative proceedings regarding deliberations of the Legislature, the Members of the Legislature, andits employees, committees, and caucuses. California voters, by passing Proposition 59 in 2004 which amendedthe California Constitution with this language, elevated to civil right status a citizen’s right to access governmentinformation. 60 The Voter’s Pamphlet demonstrates the People’s intentin enacting this constitutional amendment, Whatwill Proposition 59 do? It will create a new civil right: a constitutional right to know whatthe governmentis doing, whyit is doing it, and how.It will ensure that public agencies,officials, and courts broadly apply laws that promote public knowledge.It will compel them to narrowly apply lawsthat limit openness in government—including discretionary privileges and exemptionsthatare routinely invoked even whenthere is no need for secrecy. (Exhibit 3, Pet.RJN at 3-002.)(See, e.g. Strauss v. Horton (2009) 46 Cal4th 364, 472 [the most potentially informative extrinsic source regarding voterintent oninitiative is usually the material contained in the ballot pamphlet].) That the right of access to government information is nowa civil right in California suggests a greater significance should be given to it when construing statutes related tc information access such as the PRA, andthat the judiciary should applythe constitutional requirementto interpret suchstatutesat the inception of the statutory interpretation exercise. Some courts have given the constitutional mandate due consideration. For example, in Sonoma County Employees’ Retirement Assn. v. Superior Court (2011) 198 Cal. App. 4th 986, [“SCERA"], 61 a newspaper requested payroll information includingretirees’ pensions pursuant to PRA. In accordance with Art I, Section 3 (b)(2), the court held that Gov. Code, § 31532 did not make confidential the names of, and amountof benefits received by, each retired county employee or beneficiary. The court having foundstatutory ambiguity, engaged in the process of statutory interpretation, following the constitutional mandate to construe provisions restricting access narrowly. (Id. at pp. 992-993.) The court stated, “In the particular context of the CPRA,if there is any ambiguity about the scope of an exemption from disclosure, we must construeit narrowly,” (Ibid.), emphasizing that this narrow constructionis a constitutional requirement. (Id. at p. 1000.) In contrast, the Fourth District’s statutory interpretation analysis violates this constitutional mandate by doing the opposite of whatit requires. After declaring the Software Provision ambiguous and susceptible to both parties’ interpretations, (Opn., p.8), the Opinion broadly interprets subd., (b) of § 6254.9 to arrive at the conclusion that the OC Landbaseis not a public record becauseit is part of “computer mapping system.” (Opn., pp. 16-17.) The constitutional mandateis treated almost as an afterthought; the ent.re extent of attention given to it by the Opinionis as follows: Sierra Club points out that the California Constitution mandates that a statute be “narrowly construedif it limits” the people’s right of access to government information. (Cal. Const., art. 1, § 3, subd. (b)(1) & (2).) We have construed section 6254.9 as narrowly as is possible consistent with its legislative history. Moreover, article 1, section 3, subdivision (b)(5) of the California Constitution specifies it “does not repeal or nullify, expressly or by implication, any ... statutory exception to the right of access to public records ... that is in effect on the effective date of this subdivision... .” Section 6254.9 wasin effect on November3, 2004, the subdivision’s effective date. (Opn., pp. 16-17.) Had the Opinion given due regardto the civil right status of a citizen's right to access government information, and the express language of Article I, Section 3 (b), it is quite possible the Fourth District would have drawn a different conclusion. For one, there is nothing on the face of subsection (b)(5) of Article I, Section 3, that suggests if is intended to equate a court’s narrow reading of a previously-enacted statute limiting public access with nullification or repeal of that statute. On the contrary, subsection (b)(5) merely recognizes that while statutory exceptionsto the right of access to public records (such as section 6254.9) will be read narrowly, they maystill be given effect. Here, the interpretation of “software”as limited to “software” and not “data”, leaves section 6254.9 intact, yet satisfies subdivision (b)(2)’s constitutional requirement to read the Software Provision narrowly. The Opinion does not explain how Sierra Club’s interpretation of the term “software” would somehow “nullify” section 6254.9. (See Opn., pp. 16-17.) Thus, the interpretation of “software” and “computer mapping systems” must be governed by the narrow construction required by the California Constitution. Any ambiguity in the term “computer mapping systems” mustbe resolved in favor of disclosure and thus in favor of Petitioner in this case. CONCLUSION Sierra Club requests this Court reverse the Fourth District with instructions to direct Respondent to enter judgmentin favorof Sierra Club, and to issue an extraordinary writ directing Orange Countyto provide Sierra Club a copy of the OC Landbasein GISfile format for the direct cost of duplicating the OC Landbase onto a suitable medium, such as a computer disk or solid-state USB drive (“thumb drive”). 64 Sierra Club also respectfully requests this Court give priority to this case, since the Legislature contemplated judicial challenges under the PRA bedecided at the earliest possible date. (See section 6258, the object of which is to secure a decision at the earliest possible time; and section 6259, providing for an expedited appeal procedure.) Further, should Sierra Club prevailin this case, it is requested that this Court determine entitlement to attorney fees, pursuant to section 6259, subdivision (d), and to remand to the Court of Appeal with directions to orderthe trial court to determine the amountof the attorney fee award.(Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal. 3d 376, 427, [determining prevailing party entitled to attorney fees].) Dated: November 4 , 2011 Respectfully Submitted, VENSKUS & ASSOCIATES, P.C. Sabrina Venskus Attorneyfor Petitioner, The Sierra Club O N Q I CERTIFICATE OF COMPLIANCE Counselof record herebycertifies that pursuant to Rule of Court 8.204(c)(1) the attached Petitioner’s Opening Brief on the Merits was produced on a computer and contains 12,288 words, not includingthis certificate or the tables of contents and authorities. Counsel relies on the word count of the Microsoft Word computer program used to preparethisbrief. id Dated: November /_[, 2011 66 Respectfully Submitted, VENSKUS & ASSOCIATES,P.C. Vax f Sabrina Venskus Attorney for Petitioner, The Sierra Club Filed 5/31/11 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE SIERRA CLUB, Petitioner, V. G044138 THE SUPERIOR COURT OF ORANGE (Super. Ct. No. 30-2009-00121878- COUNTY, CU-WM-CIJC) Respondent; OPINION COUNTY OF ORANGE, Real Party in Interest. Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, James J. Di Cesare, Judge. Petition denied. Venskus & Associates, and Sabrina D. Venskusfor Petitioner. Michel & Associates and C.D. Michel for Members of the GIS Community as Amici Curiae on behalf of Petitioner. Law Offices of Michael W. Stamp, Michael W. Stamp, and Molly Erickson for The Open Monterey Project as Amicus Curiae on behalf of Petitioner. M. Rhead Enion for Academic Researchers in Public Health, Urban Planning and Environmental Justice as Amici Curiae on behalf of Petitioner. Meyer, Klipper & Mohr, Christopher A. Mohr, Michael R. Klipper; Coblentz, Patch, Duffy & Bass, Jeffrey G. Knowles, and Julia D. Greer for Consumer Data Industry Association, Corelogic, LexisNexis, The National Association of Profession BackgroundScreeners, and the Software & Information Industry Association as Amici Curiae on behalf of Petitioner. Holme Roberts & Owen, Rachel Matteo-Boehm, Katherine Keating and Leila Knox for Media and Open Government, First AmendmentCoalition, Freedom Communications, Inc., publisher of the Orange County Register, Los Angeles Times Communication LLC,doing business as Los Angeles Times, The Associated Press, Bay Area News Group, Bloomberg News, Courthouse NewsService, Gannett Co., Inc., Hearst Corporation, Lee Enterprises, Incorporated, The McClatchy Company, Patch Media Corporation, The San Francisco Examiner, Wired, American Society of News Editors, Association of Capitol Reporters and Editors, California Newspaper Publishers Association, Citizen Media Law Project, Electronic Frontier Foundation, First Amendment Coalition of Arizona, National Freedom of Information Coalition, Openthegovernment.org, The Reporters Committee for Freedom of the Press, and Society of Professional Journalists as Amici Curiae on behalf of Petitioner. No appearance for Respondent. Nicholas S. Chrisos, County Counsel, Mark D. Servino, Rebecca S. Leeds, and Karen L. Christensen, Deputy County Counsel, for Real Party in Interest. Best Best & Krieger and Shawn Hagerty for League of California Cities and California State Association of Counties as Amici Curiae on Behalf of Real Party in Interest. The issue in this case is whether the California Public Records Act (the Act) (Gov. Code, § 6250 et seq.) requires a government agencyto disclose to any requesting person (who paysthe cost of duplication) the database associated with a geographic information system.' In a petition for writ of mandate, Sierra Clubasserts such a right to a database developed by the County of Orange (the County).* The County argues that under section 6254.9 of the Act, the database is not a public record and therefore the County may chargea licensing fee for its disclosure. We conclude section 6254.9 excludes from the Act’s disclosure requirements a geographic information system database like the one at issue here. Therefore, the County may properly charge a licensing fee for its geographic information system database. FACTS Stipulated Facts The parties stipulated in writing to the following facts. The database sought by Sierra Club is the “OC Landbase,”i.e., “the County’s parcel geographic data in a GISfile format.” “GIS”stands for “geographic information system.” “‘GIS file format’ meansthat the geographic data can be analyzed, viewed, and managed with GIS software.” “The OC Landbaseis a parcel-level digital basemap identifying over 640,000 parcels in Orange County with geographic boundaries All statutory references are to the Government Code unless otherwise stated. ; The trial court’s denial of Sierra Club’s petition for writ of mandate is “immediately reviewable bypetition to the appellate court for the issuance of an extraordinary writ.” (§ 6259, subd. (c).) of parcels, Assessor Parcel Numbers [and] street addresses, with links to text information such as the name and addresses of the owner(s) of the parcels.” “The County currently distributes the OC Landbasein a GIS file format” “to members ofthe public,if they pay a licensing fee and agree to the license’s restrictions on disclosure and distribution.” The OC Landbasein a GISfile format does not contain any computer programs. The County agreed to provide Sierra Club with copies of the source documents containing the parcel related information (such as assessmentrolls and transfer deeds)“in Adobe PDFelectronic formator printed out as paper copies,” rather than in a GIS file format. But “Sierra Club cannot use the analytical, display and manipulation functions of its GIS software on the OC Landbaseif the County produces [the information] in Adobe PDF formator printed out on paper.” The Proceedings Below Sierra Club asked the superior court to issue a writ of mandate “compelling the County to provide the OC Landbase in a GISfile formatto the Sierra Club for a fee consisting of only the direct costs of [duplication], and with no requirement that the Sierra Club execute a non-disclosure or other agreement with the County.” Before 4 J By order dated October 8, 2010, we granted Sierra Club’s request for judicial notice of parts of the legislative history of section 6253.9 andofficial ballot information on Proposition 59 (addingarticle 1, section 3(b) to the state Constitution). We hereby grant the County’s motion for judicial notice of Assembly Bill No. 1293 (1997-1998 Reg. Sess.), and a Sierra Club amici’s request for judicial notice ofits exhibits A through L,1.e., the court records from County ofSanta Clara v. Superior Court (2009) 170 Cal.App.4th 1301, 1326 (Santa Clara), the legislative history of section 6253.9, and Assembly Bill No. 1968 (2007-2008 Reg. Sess.). We hereby deny Sierra Club’s request for judicial notice of the County’s GIS needs assessment study and a Sierra Club amici’s request for judicial notice of exhibits M through X,consisting of newsarticles and internet web pages. ruling, the court heard oral argument, allowed extensive briefing, and conducted a two- day evidentiary hearing. At the evidentiary hearing, Sierra Club’s expert witness (Bruce Joffe) read aloud the following definition of “GIS” from a specialized technical dictionary on geographic information systems: “An integrated collection of computer software and data used to view and manage information about geographic places and [analyze] spatial relationships and modelspatial processes.” Joffe opined this definition was a “misstatement” because “GIS is software that integrate[s] data models and other spatial processes.” But on cross examination, Joffe admitted that he “used”the following definition for “GIS” in a 2003 document: “Geographic Information System, the collection of computers, software, databases, and data that enable geospatial data to be received, manipulated, displayed, and distributed.” The court found that the “County offered persuasive testimony and evidence that the term ‘GIS’ refers to ‘an integrated collection of computer software and data used to view and manage information about geographical places, analyze spatial relationships and modelspatial processes.’” The court further found the County showed “that all of the revenue collected from licensing the OC Landbase in a GIS file format accounts for only 26% of the costs to keep the OC Landbaseup to date.” The court, identifying the issue as “whether the OC Landbasein a GISfile format falls within the scope of Section 6254.9’s computer mapping system exception” from public disclosure, held that “Section 6254.9’s legislative history indicates that it was designed to protect computer mapping systems from disclosure, including the data component of such systems, and to authorize public agencies to recoup the costs of developing and maintaining computer mapping systemsbyselling, leasing, or licensing the system.” DISCUSSION The Act requires government agencies to make public records promptly available to any requesting person “upon paymentof fees covering direct costs of duplication, or a statutory fee if applicable,” unless the record is “exempt from disclosure by express provisions of law.” (§ 6253, subd. (b).) “‘Public records’” are defined to include “any writing containing informationrelating to the conduct of the public’s business prepared, owned, used,or retained by anystate or local agency regardless of physical form or characteristics.” (§ 6252, subd.(e).) The “Act states a numberof exemptions that permit government agencies to refuse to disclose certain public records.” (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1282.) “A qualifying agency refusing to disclose a public record must ‘justify’ its decision ‘by demonstrating that the record . . . is exempt under’ one ofthe” Act’s express exemptionprovisions. (/bid.) Atissue in this case is the Act’s exclusion from mandatory disclosure for “computer mapping systems” within the meaning of section 6254.9. Undersection 6254.9, subdivision (a), “[c]omputer software developedbya state or local agencyis not itself a public record” under the Act and therefore the agency may“sell, lease, or license” it.” (Italics added.) Subdivision (b) of section 6254.9 defines “‘computer software’”’: “As used in this section, ‘computer software’ includes computer mapping systems, computer programs, and computer graphics systems.” Section 6254.9 further provides: “(c) This section shall not be construed to create an implied warranty . . . for errors, omissions, or other defects in any computer software as provided pursuantto this section. ‘ In this opinion, werefer to the exclusion from public disclosure established by section 6254.9 as an exclusion, rather than an exemption, since governmentally- developed “computer software” within the meaningofthat statute is not a public record. [{] (d) Nothingin this section is intended to affect the public record status of information merely becauseit is stored in a computer. Public records stored in a computer shall! be disclosed as required by this chapter. [§]] (e) Nothing in this section is intended to limit any copyright protections.” Both parties agree that the OC Landbaseis a GIS database.’ They disagree on whether a computer mapping system, within the meaning of section 6254.9, includes only the GIS computer program,or alternatively, the GIS computer program and database. Sierra Club argues “the correct interpretation of section 6254.9 is that computer databases containing GIS data are not considered software underthe [Act],” relying heavily on standard dictionary definitions of “computer software” and “data.” The County contends the “OC Landbase data, which is ina GIS file format, is part of a computer mapping system”and therefore excluded from disclosure under section 6254.9. Section 6254.9 does not define the term “computer mapping systems.” We must therefore interpret section 6254.9 in accordance with established principles of statutory construction. Our standard of review is de novo. (An Independent Home Support Service, Inc. v. Superior Court (2006) 145 Cal.App.4th 1418, 1424.) “Our fundamental task in interpreting a statute is to determine the Legislature’s intent so as to effectuate the law’s purpose. Wefirst examinethe statutory language, giving it a plain and commonsense meaning. Wedo not examine that languagein isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unlessa literal interpretation would result in absurd consequencesthe Legislature did not intend. Ifthe statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute’s ° Wedo not define what constitutes a “GIS database,” since the only question before us is whether the OC Landbase (an undisputed GIS database) is excluded from public disclosure under section 6254.9. purpose, legislative history, and public policy.” (Coalition ofConcerned Communities, Ine. v. City ofLos Angeles (2004) 34 Cal.4th 733, 737.) Section 6254.9’s language is susceptible to both parties’ interpretations, 1.€., a “computer mapping system” might or might not include data along with the associated computer program. We must focus on the ambiguousphrase “computer mapping system,” not the standard dictionary meaning of “computer software,” because section 6254.9 contains its own definition of computer software. “‘Whena legislature defines the languageit uses, its definition is binding upon the court even though the definition does not coincide with the ordinary meaning of the words. ...”” (Coryv. Board ofAdministration (1997) 57 Cal.App.4th 1411, 1423-1424.) Moreover, if dictionary definitions controlled the outcomein this case, the word “system”is defined as a “complex unity formed of many often diverse parts subject to a commonplan or serving a commonpurpose.” (Webster’s 3d New Internat. Dict. (2002) p. 2322.) Thus, a computer mapping system should include more than solely a computer program component. (In addition to computer data and programs, a computer system could also include hardwareor infrastructure, although these last two components cannot be physically copied and disclosed.) We mustthusinterpret “computer mapping system,”as used in section 6254.9, to determine whetherthe term includes a computer mapping database. We turn first to section 6254.9’s legislative history.° Asoriginally introducedin the Assembly on February 11, 1988, the statute allowed a governmentagencyto sell “proprietary information”and defined that term to “include[] computer readable data bases, computer programs, and computer graphics systems.” An Assembly amendmentdated April 4, ° The trial court granted Sierra Club’s request for judicial notice of the legislative history of section 6254.9. Pursuant to Evidence Code section 459, subdivision (a), we take judicial notice of the same material in the record. 1988 (first amended bill) changed the term “proprietary information”to “computer software,” but kept the same definition quoted above. Thefirst amendedbill also added a statement that nothing in the section wasintended to affect the public record status of information “merely becauseit is stored in a computer.” A Senate amendmentdated June 9, 1988 (second amendedbill) changed the term “computer readable data bases”in the definition of computer software to “computer mapping systems.” A Senate amendmentdated June 15, 1988 (final amendedbill) added the sentence, “Public records stored in a computershall be disclosed as required by this chapter.’””’ The City of San Jose sponsoredthe bill. A report of the Assembly Committee on Government Organization stated the first amended bill’s purpose wasto allow San Jose, which had “developed various computer readable mapping systems, 99 @graphics systems, and other computer programs,” “to sell, lease, or license the software at a cost greater than the ‘direct costs of duplication.’” (See Hutnick v. United States Fidelity & Guaranty Co. (1988) 47 Cal.3d 456, 465 [legislative committee reports are cognizable legislative history].) The report stated San Jose was “concerned about recouping the cost of developing the software.” The report stated the “bill draws a distinction between computer software and computer-stored information” and “declares that information is not shielded from the [Act] ‘merely becauseit is stored on a computer.’” A San Jose memorandum (containedin the legislative file of the Senate Committee on Governmental Organization) stated: “The City of San Jose, like many other governmentagencies[,] has developed various computer readable data bases, ’ Thebill originally proposed to amendsection 6257 (repealed in 1998). as opposed to enacting a new section. The first amendedbill stated that computer software “developed or maintained by” a government agencyis not a public record. The second amendedbill deleted the phrase,“or maintained,” due to the Finance Department’s observation that if an agency did not develop the particular software, it did not own such software and could not legally lease orsell it without the owner’s consent. computer programs, computer graphics systems and other computer stored information at considerable research and development expense. For example, the City’s Department of Public Workshas recently completed development of a data base for a computer mapping system known as the Automated Mapping System (AMS). [{] The AMSis the product of eight years of efforts on the part of Public Worksto collect and store on computer magnetic tape, city wide information regarding the location of public improvements and natural features. This wide range of data can be arranged in various ways to produce many types of mapsfor specialized uses, such as fire response, sewercollection, or police beat maps. Public Worksestimates that developmentcosts to date have exceeded $2 million dollars.” (Quarterman v. Kefauver (1997) 55 Cal.App.4th 1366, 1373 [‘‘[s]tatements by the sponsorof legislation maybeinstructive”].) The Department of Finance opposedthe first amendedbill on April 28, 1988, noting that the inclusion of databases in the definition of “computer software” was contradictory to the statute’s statement that nothing in the section was intendedto affect the public record status of information merely becauseit is stored in a computer. The contradiction resulted because “data bases are organizedfiles of record information subject to public records laws” and making them subject to sale or licensing was contrary to the people’s right to access public information undersection 6250.° The “Fiscal Analysis” section stated: “The potential revenue generated by the sale of computer programs, graphics, and information data bases could be substantial depending on the price of the information, program or graphics, and conditions ofthe sales or licensing agreement.” 8 The Departmentof Finance also objected that the bill would permit the state to sell software or data bases which it maintained and did not own, and thebill did not protect the state from warranty liability. The second amended bill addressed both these concerns in subdivisions (a) and (c) of section 6254.9. 10 As noted above, the Senate amended thebill on June 9, 1988 to, interalia, revise the statute’s definition of computer software to include “computer mapping systems”instead of “computer readable data bases.” The Department of Finance then dropped its opposition to the bill. The Finance Department’s June 16, 1988 report identified its position on the second amendedbill as “neutral,” noting in the “Specific Findings”sectionsthat the bill “specifically includes computer mapping systems as computer software, thereby permitting their sale” and that the bill “specifies that any data that may be stored on a computerstill retains its public record status.” The “Fiscal Analysis” section of the Finance Department’s report continued to state: “The potential revenue generated by the sale of computer programs, graphics, and information data bases could be substantial depending on the price of the information, program or graphics, and conditionsofthe sales or licensing agreement.” (Italics added.) A Senatestaff analysis of the second amendedbill stated the bill’s purpose wasto “clarify that computer softwareis not itself a public record and to authorize a public agencytosell, lease, or license the software at a cost greater than [the cost of duplication]. The bill would permit the city of San Jose and other government agencies to recoup development costs of computer databases sold to the public.” The report eeedescribed the statute as specifying that “‘computer software,’ as defined”is not itself a public record. (Italics added.) The report noted that San Jose “has developed various computer readable data bases and other computer stored information for various civic planning purposes”and that a “numberofprivate parties have requested use of the city’s software under the [Act] for profit-making purposes.” A Senate Rules Committee report concerning the final amended bill stated in the section titled “Arguments in Support”that the bill “would permit the city of San Jose and other governmental agencies to recoup developmentcosts of computer databasessold to the public.” 11 An Assembly report concurring in the Senate amendmentsto the final amendedbill stated that the Senate amendments “[s]pecifically reference computer mapping systems and make other technical revisions.” The “Comments”section of the report states that San Jose “has developed computer readable mapping systems, graphics systems, and other computer programsfor civic planning purposes”andthat the “city is concerned about recouping the cost of developing the software.” The Departmentof Finance,in its June 20, 1988 report stating its neutral position on the final amendedbill, reiterated its finding that the bill permitted the sale of computer mapping systemsandthat the potential revenue generated bythe sale of “information data bases” could be substantial. The Director of the Departmentof Finance signed anidentical report on August 9, 1988.” A Republican analysis for the Assembly Governmental Organization Committee stated the final amendedbill revised the Act “to allow agencies to recover development and maintenance costs of computer software by selling or licensing computer programsand data bases that have been developed sometimesat considerable public expense. Passing such costs along to those who will use them for business- oriented purposesis in the taxpayers’ best interest. [{]] This does not affect the ability of the public to obtain information stored on computers.” (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1297 [Republican analysis of Assembly bill showed legislative history and intent].) The bill passed unanimously through the Assembly and the Senate with support from manylocal governments and no known opposition. On August 22, 1988, the Governor signed the bill adding section 6254.9 to the Government Code. » Sierra Club postulates that the Department of Finance’s referencesto information data bases “were unintentional and morelikely a case of editing oversight.” But we cannot presumethat a passage in a government documentis simply the product of an editing mistake, particularly a document which wassigned and submitted on four separate dates by different individuals. 12 Thelegislative history of section 6254.9 reveals that the computer mapping systems developed by San Jose and other governmententities consisted of databases. San Jose’s description of its computer mapping system includes no references to any mapping computer programs developedbyit. The legislative history also reflects a concern that the original bill’s definition of computer software to includeall “computer readable data bases” was too broad, encompassing information potentially desired by credit bureaus, title companies, and newspapers. As noted by the Departmentof Finance, a database is simply an organizedfile of information. Thus, the expansive phrase “computer readable data bases” would have excluded from disclosure all organized information stored on a computer. Balancing these considerations, and based on section 6254.9’s legislative history, we interpret “computer mapping systems”to include a GIS databaselike the OC Landbase. This interpretation effectuates the bill’s purpose of allowing San Jose to recoup the developmentcosts of its database known as the Automated Mapping System. Significantly, San Jose also sought the ability to recoup the cost of developingits computer graphing systems,andas a result, “computer graphing systems”are also included in section 6254.9’s definition of computer software.'° The Legislature, by substituting “computer mapping systems”for “computer readable data bases”in the statutory definition of computer software, narrowedthe definition sufficiently to preserve the public records status of most computer-stored information, while excluding from public disclosure a narrow andspecific type of database(i.e., a computer mapping database). A computer mapping databaseis not excluded “merely” becauseit is stored on a computer, but because its developmentis time-consuming andcostly and the "0 The definition of computer graphing systemsis not before us. 13 Legislature has madea policy decision that local governments should be allowed to recoup someoftheir developmentcosts." If “computer mapping systems” were interpreted to include only computer programs,it 1s unclear what purposethe inclusion of the phrase in section 6254.9 was intendedto achieve, since the legislative history does not show that any local government or agency soughtthe ability to recoup the developmental costs of a proprietary computer program associated with a mapping system. Indeed, GIS softwareis sold by third party vendors, weakening any market a government mighthaveforits proprietary computer program associated with a mapping system. Here, the County licenses mapping software from third parties; similarly, Sierra Club uses “‘a program called Arc Map.” Furthermore, if “computer mapping systems” denotes only mapping computer programs, then the phrase is superfluous since section 6254.9’s definition of computer software already includes computer programs. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 22 [courts avoid “constru[ing] statutory provisions so as to render them superfluous”]; Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 234 [if two terms have same meaning,one is “mere surplusage”].) A court interpreting a statute should try to give “effect... , whenever possible, to the statute as a whole and to every wordandclause thereof, leaving no part or provision useless or deprived of meaning.” (Weber v. County ofSanta Barbara (1940) 15 Cal.2d 82, 86.) Having reviewedthe legislative history of section 6254.9, we turn to the statutory frameworkof whichthe section is a part. The Act’s statutory schemeis consistent with our interpretation that computer mapping databasesare excluded from public disclosure. The Act exempts many types of information from disclosure ($§ 6254 — 6254.29) without regard to whether the data is stored in a computer. Thus, section 6254.9, subdivision (d)’s statementthat “[p]ublic records stored in a computer Here, the County contendsit has spent over $3.5 million duringthelast five years to maintain the OC Landbase. 14 shall be disclosed as required by this chapter” is not a mandate that all computer-stored information must be divulged underthe Act. Sierra Club argues that section 6253.9 of the Act requires the County to disclose the OC Landbasein the electronic format requested by Sierra Club. But section 6253.9 applies to electronically formatted “information that constitutes an identifiable public record not exemptfrom disclosure pursuant to this chapter” and requires such information to be made “available in an electronic format when requested by any person... .” (/d., subd.(a), italics added.) Thestatute’s legislative history reveals that an “earlier version”failed to specify its nonapplication to information exempted from disclosure under the Act; this earlier version drew opposition “related to the proprietary software and security exemption,” which opposition was withdrawnafter the bill was amended.'? Furthermore, a specific provision (such as section 6254.9 regarding eee 299computer mapping systems) “prevails over a general one relating to the same subject. (Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 942.) Looking outside the Act, other California statutes are consistent with our interpretation that a computer mapping system includesthe integrally associated database. The Barry Keene Underground Storage Tank Cleanup Trust Fund Act of 1989 (Health & Saf. Code, § 25299.10 et seq.) concerns underground petroleum storage tanks. Article 12 thereof requires the State Water Resources Control Board to “upgrade the data base” to “include the establishment ofa statewide GIS mapping system... .”'> (Health & Saf. Code, § 25299.97, subd. (b), italics added.) The databaseis to be “expand{ed}”to 12 Sierra Club notes one purpose of section 6253.9 wasto obviate the duplication cost of making paper copies. Here, the parties stipulated the Countyoffered Sierra Club the information in “Adobe PDFelectronic formator printed out as paper copies... .” 8 The database covers “discharges ofpetroleum from underground storage tanks.” (Health & Saf. Code, § 25296.35 [formerly § 25299.39.1].) 15 “create a cost-effective GIS mapping system that will provide the appropriate information to allow agencies to better protect public drinking water wells... .” (/d., subd. (c)(1), italics added.) “GIS mapping system”is defined as “‘a geographic information system that collects, stores, retrieves, analyzes, and displays environmental geographic data in a data base that is accessible to the public.” (/d., subd. (a)(3).) Although the state has chosen to makethis particular GIS database accessible to the public, thereby foregoingits rights under section 6254.9, whatis pertinent to our inquiry here is that the databaseis an integral part of the GIS mapping system. Similarly, the Elder California Pipeline Safety Act of 1981 (safety regulation of hazardousliquid pipelines) contains a virtually identical definition of “GIS mapping system.” (§ 51010.5, subd. (1).) In addition, Health and Safety Code section 25395.117, subdivision (b) requires the Department of Toxic Substances Control to “revise and upgrade the department’s database systems. . . to enable compatibility with existing databases ofthe board, including the GIS mapping system established pursuant to Section 25299.97.” (Italics added, see Health & Saf. Code, § 25395.115, subd. (d).)"" Sierra Club points out that the California Constitution mandatesthat a statute be “narrowly construedif it limits” the people’s right of access to governmeni " Outside California, statutes of Illinois, lowa, Maryland, Nevada, and North Carolina exempt GIS databases from public disclosure or allow governmententities to charge fees for them. (5 II. Comp. Stat. 140/7, subd. (1)(i) [protecting “{vJaluable formulae, computer geographic systems, designs, drawings and research data obtained or producedby anypublic body”’]; Iowa Code, § 22.2, subd. (3)(5) [“geographic computer database”); Md. Code Ann., State Gov’t. § 10-901 subd. (f)(2) [“‘System’ includes data that define physical and nonphysical elements of geographically referenced areas”; Nev. Rev Stat. Ann., § 23.054 [“‘geographic information system’ means a system of hardware, software and data files on which spatially oriented geographical informationis digitally collected, stored, managed, manipulated, analyzed and displayed”’]; N.C. Gen.Stat., § 132-10 [reasonable fee may be charged for “Geographical information systems databases anddatafiles”’].) 16 information. (Cal. Const., art. I, § 3, subd. (b)(1) & (2).) We have construed section 6254.9 as narrowlyasis possible consistent with its legislative history. Moreover,article I, section 3, subdivision (b)(5) of the California Constitution specifies it “does not repeal or nullify, expressly or by implication, any . . . statutory exception to the right of access to public records .. . that is in effect on the effective date of this subdivision... .” Section 6254.9 wasin effect on November3, 2004, the subdivision’s effective date. Weturn to Sierra Club’s remaining counter arguments. Sierra Club relies heavily on an Attorney General opinion which concluded that a GIS database does not constitute a computer mapping system for purposes of section 6254.9. (88 Ops.Cal.Atty.Gen. 153 (2005).) But that opinion considered only the language of section 6254.9 and did not examine (or even mention)its legislative history. The opinion contains scant analysis of the issue: “[T]he term ‘computer mapping systems’ in section 6254.9 does not refer to or include basic maps and boundary information perse(i1.e.. the basic data compiled, updated, and maintained by county assessors), but rather denotes unique computerprograms to process such data using mapping functions — original programs that have been designed and producedby a public agency. (See, e.g., §§ 6254.9, subd. (d), 6253.9, subd.(f) [distinguishing ‘record’ from ‘software in which [record] is maintained’ ], 51010.5, subd.(i) [defining ‘GIS mapping system’ as system ‘that will collect, store, retrieve, analyze, and display environmental geographic data ....’ (italics added)]; see also Cadence Design Systems, Inc. v. Avant! Corporation (2002) 29 Cal.4th 215 [action between two ‘software developers’ who design ‘place and route software’ ]; Edelstein v. City and County ofSan Francisco (2002) 29 Cal.4th 164, 171 [delay in implementation of elections system because necessary ‘software’ not yet ‘developed’ and tested]; Computer Dict. (3d ed. 1997) p. 441 [defining ‘software’ as ‘{c]omputer programs; instructions that make hardware work’ |; Freedman, The Computer Glossary: The Complete Illustrated Dict. (8th ed. 1998) p. 388 [‘A common misconception is that software is also data. It is not. Software tells the hardware howto 17 process the data. Software is “run.” Data is “processed”’].)” We have already discussed most of the authorities on which the Attorney General relied, 1.e., sections 6254.9, subdivision (d) (public record status of information stored in a computer), 6253.9 (requested electronic format), and 51010.5 (Elder California Pipeline Safety Act of 1981), and standard dictionary definitions of “software.” The relevance of Cadence aceDesign Systems to the issue before us is unclear. There, the parties designed “‘place and route’ software, which enables computer chip designers to place and connecttiny components on a computer chip,” and the issue involved trade secret law. (Cadence Design Systems, at p. 218.) In any case, opinions of the Attorney General are “not binding on”the courts. (City ofLong Beach v. DepartmentofIndustrial Relations (2004) 34 Cal.4th 942, 952.) Finally, Sierra Club relies on Santa Clara, supra, 170 Cal.App.4th 1301. But the appellate court there declined to consider whether Santa Clara County’s GIS basemap was a computer mapping system excluded from disclosure undersection 6254.9 because the issue was raised only by Santa Clara County’s amici curiae. (Santa Clara, at p. 1322, fn. 7.) Instead, the case examined whether Santa Clara County’s GIS basemap was exempt from public disclosure under (1) section 6255 of the Act (the “catchall exemption”allowing an agencyto justify nondisclosure by showing the public interest is best served by nondisclosure) (Santa Clara, at p. 1321), (2) copyright law, or (3) “federal law promulgated under the Homeland Security Act” (id. at p. 1321). The Court of Appealstated in dicta in a footnote that Santa Clara County had concededinthetrial court that its basemap wasa public record andthat this “concession appears well founded,” based on the Attorney General’s opinion discussed above. (Jd. at p. 1332, fn. 9). The Court of Appeal stated it had taken judicial notice of, but did not rely on, the legislative history of section 6254.9 “in resolving this proceeding.” (Santa Clara, at p. 1312 & fn. 4.) Indeed, the party requesting disclosure of the basemap had argued 18 against the court’s taking judicial notice of section 6254.9’s legislative history. (Santa Clara, at p. 1312, fn. 4.) Based on our review ofthe legislative history and purposeof section 6254.9, the Act’s statutory scheme,andother relevant statutes, we conclude the County has metits burden of proving that its OC Landbaseis part of a computer mapping system and therefore excluded from public disclosure. (Board of Trustees of California State University v. Superior Court (2005) 132 Cal.App.4th 889, 896 [agency opposing disclosure bears burden of proving exemption applies].) Relevant actions taken by the Legislature subsequentto the passage of section 6254.9 do not change our conclusion. Almost a decade after enacting section 6254.9, the Legislature passed Assembly Bill No. 1293, supra, adopting the Strategic Geographic Information Investment Act of 1997 (proposed § 8301 et seq.). But the Governorvetoed the bill. (City ofRichmond v. Commission on State Mandates (1998) 64 Cal.App.4th 1190, 1199 [bill passed by Legislature but vetoed by Governor was cognizable andrelevant history].) The legislation would haveestablished state funding through grants “for the development of new, and maintenanceof, framework data bases for geographic information systems.” (Legis. Counsel’s Dig. Assem. Bill No. 1293, supra, p. 2) The Legislature recognized “the high cost of creating and maintaining geographic information data bases,” and stated, “Public agencypolicies for pricing the data range from covering the cost of data duplication, to recouping the costs from compilation and maintenanceofthe data bases.” (Assem. Bill. No. 1293, supra, § 1, subd. (m).) The Legislature expressly intended “to provide an alternative source of funds for public agencies to create and maintain geographic information data bases without havingto sell the public data.” (Assem. Bill No. 1293, supra, § 1, subd. (n).) Significantly, the proposed legislation defined “Geographic information system”as “‘an organized collection of computer hardware, software, geographic information, and personnel designedto efficiently capture, store, update, manipulate, analyze, and display 19 all forms of geographically referenced information.” (Assem. Bill No. 1293, supra, § 2; Proposed Gov. Code, § 8302, subd.(f).) The proposed legislation would have required “any recipient of a grant [to] make data developed or maintained with grant funds available to disclosure under the [Act] and require that the electronic data . . . be placed in the public domain free of anyrestriction on use or copy.” (Assem. Bill No. 1293, supra, § 2; Proposed Gov. Code, § 8306, subd. (a)(7).) A decade later, Assembly Bill No. 1978 (2007-2008 Reg. Sess.) was introduced to amendsection 6254.9 by defining computer mapping systems. Proposed section 6254.9, subdivision (b)(2) would have provided: “Computer mapping systems include, assembled model data, metadata, and listings of metadata, regardless of medium, and tools by which computer mapping system recordsare created, stored, and retrieved.” The bill was referred to two committees, but they took no action on it. A Sierra Club amici argues that because the bill “did not makeit out of committee,” the Legislature effectively ratified the Attorney General’s interpretation of “computer mapping systems” to exclude data. But “‘failure of the bill to reach the [chamber] flooris [not] determinative of the intent of the [chamber] as a whole that the proposedlegislation should fail.”” (Prachasaisoradej v. Ralphs Grocery Co., Inc. (2007) 42 Cal.4th 217, 243- 244.) Moreover, legislative acquiescence may be inferred “when there exists both a well- developed body of law interpreting a statutory provision and numerous amendments to a statute without altering the interpreted provision.” (Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1156.) Neither of those conditions is met here. Sierra Club stresses the potential impact of our decision, warning that geographic data is increasingly used by governmentagencies and the public. We reiterate that the OC Landbaseis excluded from disclosure becauseit is a basemapthat constitutes an integral part of a computer mapping system, not simply because it contains some geographic data. Section 6254.9 must be interpreted narrowly to exclude from 20 disclosure only a GIS database such as the OC Landbase. (Cal. Const., art. 1, § 3, subd. (b)(2).) By enacting section 6254.9 in 1988, the Legislature encouraged and enabled local governments to develop and maintain computer mapping systemsby allowing the agencies to recoup some oftheir costs.'”. Whetherthe increasing use of GIS data in our society requires reconsideration of section 6254.9’s exclusion from disclosure is a matter of public policy for the Legislature to consider. (/n re Marriage of Tavares (2007) 151 Cal.App.4th 620, 628 [the Legislature, not the judiciary, determines public policy].) DISPOSITION The petition for extraordinary writ is denied. IKOLA,J. WE CONCUR: O’LEARY, ACTING P. J. MOORE,J. is In the County’s consolidated answer to Sierra Club’s various amici, the County states such amicipraise “the usefulness and functionality of computer mapping systems.” The County argues it spends “millions of dollars to maintain and update the OC Landbase”precisely becauseof its “great utility,” and that without licensing fees, the County would be forced to reduce services. 21 PROOF OF SERVICE I SHARONL. EMERYdeclare: I am, and wasat the time of the service hereinafter mentioned, over the age of eighteen and nota party to the above-entitled cause. My business address is 21 South California Street, Suite 204, Ventura, California 93001. On November _44_, 2011 I served the following documents described as: PETITIONER’S OPENING BRIEF ON THE MERITS __X__ Via U.S. Mail: by placing a copy of the said document/sin a sealed envelope to the addressees as indicated further below, with the postage thereon fully prepaid the same day on which the correspondencewasplaced for collection and mailing, in a U.S. Postal Service box at 21 South California Street Ventura, California 93001. Via Federal Express: by placing a copy of said document/s in a sealed packageto the addressees as indicated further below, with all delivery charges thereof fully paid the same day on which the correspondence wasplaced for collection and delivered. I declare under penalty of perjury under the lawsof the State of California that the foregoingis true and correct, and that this declaration was executed on November {4 , 2011 in Ventura, California. GL \ Sharon Emery NAMES AND ADDRESSES TO WHOM SERVICE WAS MADE | \ Nicholas S. Chrisos The Superior Court of California California Court of Appeal Mark D.Servino County of Orange Fourth Appellate District Rebecca Leeds Department C-18 Division Three Office of the County Counsel 700 Civic Center Drive, West 601 West Santa Ana Blvd. 333 W. Santa Ana Blvd., Suite 407 Santa Ana, CA 92701 Santa Ana, CA 92701 Santa Ana, CA 92701 Respondent (Over-night mail 5 copies) RealParty In Interest County of Orange
